Master Service Agreement

Last Updated on May 25, 2020


THIS Software Development Agreement (“Agreement”) as of the latest date set forth in the signature area below; by and between AloaLabs, LLC, Inc. a Texas limited liability company, of 222 West Merchandise Mart Plaza, Floor 12, Suite 1212, Chicago, IL 60654 (“Aloa”), (“Client”) and (“Developer”.)


Recitals


WHEREAS, Client desires to have software developed by Developer as set forth in the Proposal;


WHEREAS, Developer represents that it has the expertise to develop such a software as set forth on the Proposal;


WHEREAS, Developer desires to develop software for Client upon the terms and conditions as set forth in this Agreement;


WHEREAS, Aloa owns and operates a proprietary internet-based user portal (“Aloa Portal”) that facilitates the communications, collaboration, and review of the Product, via Aloa Manage; that facilitates the payment for the Product, via Aloa Pay.


NOW, THEREFORE, in consideration of the mutual covenants and promises herein set forth, the parties hereby agree as follows:


1. DEFINITIONS: The following capitalized terms, when used in this Agreement, shall have the meanings ascribed to them in this Section 1.


a. “Deliverables” shall mean all materials, including, but not limited to, software, programs, source code and object code, comments to the source or object code, specifications, documents, abstracts and summaries thereof.


b. “Development Price” shall mean the compensation Client to pay Aloa as set forth in the Proposal.


c. “Development Tools” shall mean any pre-exisitng or currently developed routines, methodologies, processes, libraries, tools or technologies created, adapted or used by Aloa in its business generally, including but not limited to all associated intellectual property rights.


d. “Product” shall mean the software program to be developed by Developer pursuant to this Agreement in accordance with the Proposal.


e. “Proprietary or Confidential Information” shall mean, but is not limited to, written or oral contracts, trade secrets, know- how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process.


f. “Proposal” shall mean the project outline setting forth the tasks to be performed by Developer, including milestones and the compensation schedule, as set forth in Proposal, attached hereto and made part hereof.


Other capitalized terms shall have the meanings ascribed to them in the body of this Agreement.


2. ALOA AS AGENT:  

Client and Developer agree that they are jointly and severally retaining Aloa as each of their respective joint agent for the use of the Aloa Portal (as subject to the End User License Agreement set forth therein) which is designed to facilitate and foster the communications between Client and Developer.  Aloa’s sole responsibilities are as expressly set forth in this Agreement and to license the Aloa Portal (as subject to its EULA) for the duration of this Agreement.  Client and Developer hereby release, waive, hold harmless and indemnify at point of first notice, Aloa and its administrators, affiliates, agents, assigns, beneficiaries, employees, executors  and successors, from without limitation, all accounts, agreements, bills, bonds, controversies, covenants, damages, executions, judgments, manner of actions, promises, reckonings, specialties, suits, sums of money, whether past, present or future, whatsoever, in law or in equity, under contract, by statute, common law or otherwise, which Client and Developer have now or at any time in the future, against each other or in regard to the Deliverables and Product.  As used in this Agreement, the term “damages” shall mean all actions or causes of action, claims, demands, liabilities, regulatory, legislative or judicial proceedings or investigations, assessments, levies, losses, fines, penalties, damages, lost profits, costs and expenses, including, without limitation reasonable attorneys’, accountants’, investigators’, and experts’ fees and expenses, sustained or incurred in connection with the defense or investigation of such claim.    


3. TERMS AND CONDITIONS:


a. DEVELOPMENT OF THE PRODUCT: Client hereby retains Developer to design and develop, and Developer hereby agrees to design and develop the Product in accordance with the Proposal. The parties shall work together in a joint effort to accomplish the tasks and objectives set forth in the Proposal and Developer shall be responsible for delivering and performing only those professional services specifically identified in the Proposal.  Any modifications to the Proposal shall be pursuant to the Change Order process set forth below.


b. CHANGE ORDERS: In the event Client desires to make any modifications to the Proposal, Client must provide a detailed change order in writing. This may be only provided via the technologies and/or tools provided by Aloa and agreed to in writing by Developer (“Change Order”). In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.  A Change Order shall be deemed an amendment to this Agreement and the provisions of Section 17 shall apply.


c. SUPPORT AND MAINTENANCE: Any support and maintenance services, updates, versions, or new releases shall be contracted under a separate agreement between the parties.  Maintenance and support rights or obligations for any third party products or equipment that are used in the Product and are available through the respective vendor(s)/manufacture(s) of such content and equipment shall be assigned by Developer to Client to the extent assignable. Developer shall not use any intellectual property of any third-party in the Product without Client’s written consent.


d. CLIENT RESPONSIBILITIES: Client agrees to perform all tasks assigned to Client as set forth in this Agreement, Proposal, or a Change Order, and to provide all assistance and cooperation to Developer in order to timely and efficiently complete the Product. Developer shall not be deemed in breach of this Agreement, the Proposal, a Change Order including, but not limited to failing to meet any milestone in the event Developer’s failure to meet its responsibilities and time schedules is caused by Client’s failure to meet (or delay in) its responsibilities and time schedules set forth in the Proposal, a Change Order, or this Agreement. In the event of any such failure or delay by Client, (i) all of Developer’s time frames, milestones, and/or deadlines shall be extended by the product of the number of days of Client’s failure multiplied by two (2); and (ii) Client shall continue to make timely payments to Aloa as set forth in this Agreement, the Proposal, and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by Developer.  Client shall be responsible for making, at its own expense, any changes or additions to Client’s current systems, software, and hardware that may be required to support operation of the Product. Unless otherwise contracted with Aloa or reflected in a Change Order, Client shall be responsible for initially populating and then maintaining any databases on the Product as well as providing all content for the Product.  With the execution of a Change Order specifically asking Developer to assess the Client’s systems, software and hardware from time to time, Aloa may agree to perform this function at normal Aloa rates.


e. PROJECT MANAGERS: Client and Developer shall each assign a Project Manager for managing the implementation of the Product.  The Project Managers shall be responsible for: (i) managing the day-to-day activities under this Agreement, (ii) serving as liaisons between the parties, (iii) assigning and scheduling the appropriate personnel to perform all of the required services under this Agreement, and (iv) authorizing and executing any and all Change Order(s). Client hereby acknowledges and agrees that the Client Project Manager shall have the proper authority and power to execute and perform the duties and responsibilities set forth in this Section. Developer hereby acknowledges and agrees that the Developer Project Manager shall have the proper authority and power to execute and perform the duties and responsibilities set forth in this Section.


f. ASSIGNMENT OF PROJECT: Aloa reserves the right, and Client hereby agrees, for Aloa to retain subcontractors to perform tasks pursuant to this Agreement.


g. MARKETING: Client hereby grants Aloa the right to use the name, trademarks 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 Aloa and a brief scope of services provided.  Any use of Aloa logos or links on Client’s Product must be approved in writing by Client.  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.


h. COMPATIBILITY: Unless otherwise specifically identified in the Proposal or a Change Order: (i) Client’s website is compatible solely with the U.S. versions of Internet Explorer version 8.0 and higher, (ii) Firefox 4.0 and higher (iii) Safari - latest version, (iv) Chrome - latest version.


4. FEES, EXPENSES, AND PAYMENT:


a. EXPENSES: Client shall reimburse Aloa for reasonable out-of-pocket travel expenses, including transportation, lodging, mileage, and meals incurred in rendering Aloa’s professional services and any third-party licenses purchased pursuant to Section 6(c), (collectively, “Expenses”).  Aloa shall obtain Client’s prior written authorization before incurring any individual expense.  All Expenses not paid directly by Client shall be paid within fourteen days of receipt of Aloa’s invoice.  All Expense reimbursements shall be made at Aloa’s direct out-of-pocket costs, without any markup for overhead, administrative costs, or otherwise.  Expenses shall include any costs incurred pursuant to Section 6(c).


b. FEES: Client agrees to pay Aloa the “Development Price.”  Aloa shall remit payment to Developer per a separate agreement between them.  Aloa’s receipt of payment from Client shall be a bar to any action by Developer against Client for payment of Developer’s services.


c. TAXES: Client shall pay, reimburse, and/or hold Aloa harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated except income taxes, which are levied or imposed by reason of the performance of the professional services under this Agreement or by use of the Product, except income taxes.


d. OTHER FEES: Unless otherwise provided in this Agreement or in a Change Order, payment for all other services rendered by Aloa or Developer shall be contracted under a separate agreement between all of the parties.


e. FORM OF PAYMENT: All payments made to Aloa under this Agreement shall be in United States currency and made via the Aloa Portal or as directed by Aloa.  


f. PAYMENT OF INVOICES: All invoices shall be paid by Client within fourteen (14) days of receipt.  Payments not made within such time period shall be subject to late charges equal to the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum amount permitted under applicable law. Aloa may suspend all services on seven (7) days written notice until the amounts outstanding are paid in full.


5. COMMUNICATIONS:

Client and Developer agree to use the Aloa Portal, or any other program directed by Aloa, for all communications between the parties.  Developer is not responsible for and is held harmless for any communications generated by Client outside of the Aloa Portal or other program as directed by Aloa.  Any attempt to communicate by Client to Aloa, Developer or any subcontractor retained by Aloa not through the Aloa Portal or any other program as directed by Aloa voids and renders null and void any limited warranties extended pursuant to Section 8 hereof.


6. INTELLECTUAL PROPERTY RIGHTS AND LICENSE:


a. DELIVERABLES: Upon full payment of all fees and costs due to Aloa by Client: (i) Deliverables developed by Developer exclusively in connection with this Agreement, shall belong exclusively to Client; (ii) Developer acknowledges that the Deliverables shall be deemed “works made for hire” by Developer for Client, and, therefore, shall be the exclusive property of Client; (iii) to the extent the Deliverables are not deemed “works made for hire” under applicable law, Developer hereby irrevocably assigns and transfers to Client all right, title and interest in and to the Deliverables, including, without limitation, all patent and copyright interests, and agrees to execute all documents reasonably requested by Client for the purpose of applying for and obtaining domestic and foreign patent and copyright registrations.


b. PRE-EXISTING INTELLECTUAL PROPERTY: Notwithstanding any provision of this Agreement to the contrary, any Development Tools shall be and remain the sole property of Developer or Aloa, and Client shall not have any interest in or claim to the Development Tools, except as necessary to exercise its rights in the Product.  In addition, notwithstanding any provision of this Agreement to the contrary, Aloa and Developer shall have the right to use any ideas, concepts, or know-how developed or acquired by them during the performance of this Agreement to the extent obtained and retained by their personnel as impression and general learning.  Subject to and limited by Client’s intellectual property rights described in Section 6(a) above, nothing in this Agreement shall be construed to preclude Aloa or Developer from using the Development Tools for use with third parties for the benefit of Aloa.


c. THIRD PARTY LICENSES: 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 Developer to design and develop the Product.  Such third party products may include, but are not limited to: server-side applications, clip art, “back-end” applications, music, stock images, or any other copyrighted work which Developer deems necessary to purchase on behalf of Client to design and develop the Product.  Developer shall obtain Client’s prior written consent before incorporating such third-party product into the Product.  Developer shall provide Client with a list of all third-party products upon launch of the Product.


7. TERM AND TERMINATION:


a. TERM: This Agreement shall be effective as of the Effective Date and shall continue in effect until complete payment of the Development Price or until earlier terminated as provided in this Agreement or until the Proposal has been completed.


b. TERMINATION FOR CAUSE: This Agreement may be terminated by any party upon written notice to the others, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice.


c. EFFECT OF TERMINATION: Client shall pay Aloa for all services rendered and work performed up to the effective date of termination for any reason.  Aloa shall provide Client with an invoice for the foregoing fees within thirty (30) days of the effective date of the termination. Client shall pay the invoice within fourteen (14) days of receipt.


d. RETURN OF PROPRIETARY OR CONFIDENTIAL INFORMATION: Within ten (10) days after the termination or expiration of this Agreement, each party shall return to the other all Proprietary or 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 Proprietary or Confidential Information. Notwithstanding the foregoing, a party is not obligated to return or destroy Confidential Information that: (i) it is required by law or regulation to retain, but then only for the time period required, (ii) is commingled with other information or documents of a party if it would pose a substantial administrative burden to segregate and destroy such Confidential Information, or (iii) is contained in an archived computer system or backup made by a party in accordance with its standard security or disaster recovery procedures, provided in each case that: (A) such retained documents will eventually be erased or destroyed in the ordinary course of records management and/or data processing procedures, and (B) that the party remains fully subject to the obligations of confidentiality in this Agreement until the eventual destruction of the Confidentiality Period.



8. LIMITED WARRANTIES:


a. PRODUCT: Developer warrants that for a period of thirty (30) days from launch of the Product, the Product will operate in accordance with all the material terms of the Proposal.  All warranty claims not made in writing within such period shall be deemed waived. As the sole and exclusive remedy of Client for breach of the foregoing warranty, Aloa shall, at its option, either cause Developer to correct the nonconformity or refund to Client the dollar amount attributable to the number of actual hours Developer spent developing the defective portion of the Product.  Neither Aloa nor Developer shall be liable for failures caused by third-party hardware or software (including Client’s own systems), misuse of the Product, or the negligence or willful misconduct of Client.


b. PERFORMANCE OF PROFESSIONAL SERVICES: Developer warrants that the professional services will be performed in a workmanlike and professional manner by appropriately qualified personnel.


c. MONETARY DAMAGES:  Notwithstanding the above, Client’s remedy for all monetary damages, losses, and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate dollar amount which Client paid to Aloa during the term of this Agreement.


9. LIMITATION OF LIABILITY:

Under no circumstances shall Aloa, Developer or their administrators, affiliates, agents, assigns, beneficiaries, employees, executors  and successors, or anyone else involved in creating, producing, or distributing Client’s Product be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Product; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction  or  unauthorized access to Client’s records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on the Aloa Portal. THE TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) TO THE OTHER SHALL NOT EXCEED THE DEVELOPMENT PRICE (AS DEFINED IN SECTION 1). THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE.


10. THIRD PARTY DISCLAIMER:

NEITHER ALOA NOR DEVELOPER MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.


11. INDEMNIFICATION OBLIGATIONS:


a. CLIENT INDEMNITY: (i) Client agrees that it shall defend, indemnify, save and hold Aloa and Developer harmless from any and all damages asserted against Aloa, Developer and their administrators, affiliates, agents, assigns, beneficiaries, employees, executors  and successors, that may arise or result from any service provided or performed or agreed to the performance of any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Aloa and Developer against all damages arising out of (i) any injury to any person or property caused by any products sold or otherwise distributed in connection with the Product; (ii) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; or (iii) copyright infringement and/or litigation regarding content-related disputes.  Client’s duty to defend and indemnify Aloa and Developer shall arise at the time of written notice of a damage regardless of whether a lawsuit has been filed.  Aloa and Developer have the right, at their respective option, to participate, at its own cost, in the defense of any suit, without relieving Client of any of its obligations under this Agreement.  Any settlement may only be made with the prior written consent of Aloa if the settlement requires any action or obligation on the part of Aloa or Developer.  The duty to defend is independent and separate from the duty to indemnify and exists regardless of any ultimate liability of Aloa or Developer.


b. DEVELOPER INDEMNITY: (i) Developer shall indemnify and hold harmless Aloa, Client and their administrators, affiliates, agents, assigns, beneficiaries, employees, executors  and successors, from any and damages incurred by Aloa or Client as a result of any claim, judgment, or adjudication against Aloa or Client but only to the extent that Client’s use of the Product, as permitted under this Agreement, infringes intellectual property rights of a third-party which results from Developer’s breach of the warranties and agreements contained in this Agreement.   Developer shall not have any obligation to indemnify Client under this Section if the infringement of intellectual property rights arises from (A) the Client produced content, (B) specifications provided by Client or its agents; (C) derivative works of the Product created by Client, (D) use of the Product in combination with non-approved third-party products by Aloa, including hardware and software, (E) modifications or maintenance of the Product by a party other than Aloa, (F) misuse of the Product, and/or (G) failure of Client to implement any improvement or updates to the Product, if the infringement claim would have been avoided by the use of the improvement or updates.


12. CONFIDENTIALITY:

 The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s Proprietary or Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Aloa, Client and Developer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.


13. NON-SOLICITATION:

Neither Aloa, Client nor Developer shall, during the term of this Agreement and for one (1) year after termination of this Agreement for any reason, directly or indirectly: (i) encourage any employee or subcontractor of one of the parties or its successors in interest to leave their employment with the other party or its successors in interest; or (ii) employ, hire, solicit or cause to be employed or hired or solicited, or to establish a business with, or encourage others to hire, or establish a business with any person who was within one (1) year prior to the date of termination of this Agreement was employed by one of the other parties or its successors in interest and worked on the development of the Product as an employee of  one of the other parties.


14. FORCE MAJEURE:  

Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or of the public enemy; U.S. or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.


15. INDEPENDENT CONTRACTOR STATUS:  

The relationships of the parties to each other are that of an independent contractor. It is expressly understood that this undertaking is not a joint venture.


16. NOTICES:  

Any notices provided for by this Agreement shall be made in writing and deemed receipted (1) upon the actual delivery of the notice into the hands of the parties entitled thereto, or (2) upon the forwarding of the notice by overnight courier to the last known address of the party entitled thereto, delivery fees prepaid, signature release requested.  A copy of any notice to be served on Aloa shall be simultaneously served on Pawlan Law, LLC, 1751 Lake Cook Road, Suite 400, Deerfield, IL 60015-5286, Attn: Mitchell D. Pawlan.


17. ENTIRE AGREEMENT:  

This Agreement and all exhibits, proposals,  schedules, and Change Order(s) set forth the entire agreement between the parties with regard to the subject matter hereof.  No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein. This Agreement may be amended only by a written agreement signed by all parties.


18. DISPUTES:  


a. ARBITRATION. The parties agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Cook County, Illinois and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) if possible, a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Illinois sitting without a jury, and only such power, except that the arbitrator shall not have the power to award specific performance, punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of Illinois or any other applicable law. The arbitrator must issue its resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.


b. CHOICE OF LAW AND JURISDICTION: This Agreement shall be construed pursuant to the laws of the State of Illinois.  Subject to Section 18(a); all parties consent and agree that federal and Illinois courts located in Cook County, Illinois, shall have personal jurisdiction over them in respect to all disputes based hereon, or arising out of, under or in connection with this Agreement and all parties agree to comply with all requirements necessary to grant jurisdiction in said courts.  The non-prevailing party shall reimburse the prevailing party for all attorneys’ fees, court costs and expenses that the prevailing party incurs in enforcing the terms and conditions of this Agreement.


c. REMEDIES NOT EXCLUSIVE: The remedies available to the parties under this Agreement are cumulative and not exclusive to each other, and any such remedy will not be deemed or construed to affect any right which either of the parties is entitled to seek at law, in equity or by statute.


d. LIMITATION OF ACTION: No action by a party arising under this Agreement may be brought at any time more than two (2) years after the earlier of the termination of the Agreement or when the facts occurred upon which the cause of action arose.


19. SEVERABILITY:

In the event that a court finds any provision of this Agreement invalid and/or unenforceable, the parties agree that the remaining provisions shall remain valid and in force.


20. WAIVER:  

No party shall be deemed by mere lapse of time (without giving notice or taking other action hereunder) to have waived any breach by the other party of any of the provisions of this Agreement.  Further, the waiver by either party of a particular breach of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.


21. DAYS:  

Unless indicated otherwise, all references to “days” shall mean calendar days.


22. TRADEMARKS:

The Client unconditionally warrants and guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished through the Aloa Portal for inclusion in the Product are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify and defend Aloa, Developer and their administrators, affiliates, agents, assigns, beneficiaries, employees, executors  and successors, from any damages, arising from the use of such elements furnished by the Client.


23. THIRD PARTY SOFTWARE:  

Additionally, in the event Client elects to install or seek assistance from Developer in connection with the installation of any third-party software, the following terms shall apply. Client represents and warrants that Client has the right to use and install the third-party software, and have paid the applicable licensing fees for the third party software, and the third-party software does not and shall not infringe on the intellectual property rights of any other person or entity. Client agrees to defend, indemnify and hold harmless Aloa, Developer and their administrators, affiliates, agents, assigns, beneficiaries, employees, executors  and successors, for, from and against any and all claims brought against them by a third-party alleging the software infringes: (i) the third-party’s rights; or (ii) a U.S. patent, trademark, copyright or other intellectual property right.  Client agrees that in such an event Client shall pay all resulting damages that a court awards and settlements incurred by Aloa or Developer in connection with any such claims.


24. LAW AFFECTING ELECTRONIC COMMERCE:  

The Client agrees that the Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Aloa, Developer and their administrators, affiliates, agents, assigns, beneficiaries, employees, executors  and successors from any claim, suit, penalty, tax, or tariff arising from the Client’s use of internet electronic commerce.  Aloa shall secure, as needed on e-commerce sites, a valid SSL certificate on any site which will transmit, receive, process or have access to sensitive data of any sort.


25. LAWFUL PURPOSE:  

Client may only use the Product for lawful purposes.


26. ASSIGNMENT:  

Except as set forth in Section 3(f): no party may assign this Agreement or any of its rights or obligations or the license hereunder, without the prior written consent of the other party.


28. RESERVATION OF RIGHTS:  

Aloa reserves all rights not specifically granted herein.


29. INTERPRETATION AND CONSTRUCTION:  

The parties agree that each party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments, proposals, or  exhibits thereto.


30. APPROVAL:  

This Agreement shall not be binding upon either party until it has been signed by their respective authorized officer.


IN WITNESS WHEREOF, the Parties have caused their respective authorized representatives to affix their signatures to the Proposal, as free and voluntary acts.