Developer agrees to provide consulting, world wide web development, and related services (“Services”) specified in the Statement of Work attached hereto as Exhibit A, as amended from time to time by Supplemental Statements of Work.  The Services shall be provided in accordance with the provisions of this Agreement and the applicable Statement of Work.

2.1 Lump-Sum Payments.Unless otherwise agreed in writing by both Customer and Developer, all payments for the Services under this Agreement shall be made on a lump-sum basis. The total fees and charges for such Services shall be stated in the Fee Schedule attached hereto as Schedule A or as set forth in any applicable Statement of Work (“SOW”). The fees specified are all-inclusive for the Services, and shall not be increased during the term of this Agreement except upon the written agreement of both parties.

2.3 Invoicing and Due Date.Developer shall issue an invoice for the lump-sum payment(s) as follows:

2.4 Automatic Renewal Law Compliance.Any provision in this Agreement relating to automatic renewal of subscription fees shall comply with New York’s Automatic Renewal Law (NY GOL §§ 5-903, 5-903-a). This includes providing clear disclosure of renewal terms, cancellation options, and timely advance notice before the subscription renews, as required by law.

When required by either party, the parties may in good faith negotiate Supplemental Statements of Work (“Supplements”), each of which upon signing by both parties shall be deemed part of this Agreement.  Such Supplements shall be substantially in the form of Appendix A hereto.  Unless otherwise agreed in a Supplement, the following provisions shall govern Supplements generally:

3.1 Definitions. As used in this Agreement and any relevant Statement of Work, the following terms shall be defined as follows:

3.2 Information to be Supplied to Developer.To implement a Statement of Work, Customer shall supply to Developer the Specifications, Milestone Schedule, pricing, and payment terms (including an estimate of required hours or a fixed price proposal) and any other information that Developer may reasonably require to evaluate the performance of the services proposed by Customer (the “Proposal”).

4.1 Customer shall provide Developer, upon reasonable notice, all necessary materials, data, or documentation pertaining to the Services as set forth in the applicable SOW.

4.2 Customer shall deliver to Developer such materials, data, or documentation in a form satisfactory to Developer.  All photographs, images, video, animation, film, illustrations, drawings, charts, maps, indexes and other graphical and visual materials, as well as all music, sound, narration and other audio materials or other works owned or controlled by Customer that are necessary to completion of the Services  (collectively “Customer Content”) shall be suitable for reproduction and shall be timely delivered to Developer in the form specified in the applicable SOW.

4.3 Developer shall make no changes to the text or appearance or otherwise of any of the Customer Content without the prior written approval of Customer.  Customer shall make the final determination of all Customer Content to be used on the Web Site.

4.4 Developer reserves the right to refuse to include Customer Content in the web site that Developer deems offensive or otherwise inappropriate.

5.1 Time and Manner of Delivery.
Developer shall deliver each Deliverable at the times and in the manner specified under this Agreement, including any relevant Statement of Work.  Notwithstanding the foregoing, if Customer fails to provide Developer with the information or feedback required under the acceptance test procedure set forth herein within the applicable time period, then Developer’s obligations that are dependent on such information or approval shall be extended to reflect such delay.

5.2 Procedure for Acceptance.
The procedure for acceptance of any Deliverable shall be as follows:

6.1 For purposes of this Agreement, the following terms shall have the meanings set forth below:

7.1 Customer represents and warrants that it is authorized by all required authorities to grant the license to the Customer Content to Developer as set forth in Section 6.4 and that neither the Customer Content nor Developer’s exercise of the license granted in Section 6.4 hereof infringes upon any copyright, patent, trademark, trade secret, or other proprietary rights of third parties, or any other applicable laws, regulations, or third-party rights. Moreover, Customer warrants that the Customer Content contains no material that is unlawful, harmful, fraudulent, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically, or otherwise objectionable, including, without limitation, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable laws or regulations.

7.2 Neither Developer nor any of its information providers, employers or agents warrant that the Services or Deliverables provided hereunder will be uninterrupted or error free.  Nor does Developer or any of its information providers, employees, or agents make any warranty as to the results to be obtained from the use of the Web Site or any other Services provided hereunder.  The Services and Deliverables are to be performed and delivered on an “AS IS” basis, without warranties of any kind, either express or implied, including but not limited to warranties of title or implied warranties of merchantability or fitness for a particular purpose.

8.1 Limitation on Liability.
‍Sun Locke shall defend, indemnify, and hold harmless Client and its Affiliates from and against any third-party claims alleging that the Deliverables, as provided by Sun Locke and used by Client in accordance with these Terms, infringe such third party’s Intellectual Property Rights. In the event of such a claim, Sun Locke may, at its sole option and expense, procure for Client the right to continue using such Deliverables, replace or modify them so they become non-infringing, or terminate these Terms and provide a pro-rata refund of any prepaid Fees.

8.2 Limitation on Developer’s Liability.
Developer’s liability to Customer shall in no event exceed the total amounts paid by Customer to Developer under this Agreement.

8.3 Limitation on Customer’s Liability.
Customer’s liability to Developer for any and all matters related to this Agreement shall not exceed the total of payments due to Developer from Customer hereunder.

9.1 Developer Indemnification.
Developer shall indemnify, defend, and hold harmless (including payment of reasonable attorneys’ fees) Customer, its directors, officers, employees, and agents (each, an “Indemnified Party”) from and against all third-party claims, liabilities, losses, damages, actions, or proceedings (collectively, “Claims”) arising out of or in connection with any acts or omissions of Developer in performing this Agreement, to the fullest extent permitted by the laws of the State of New York. Without limiting the generality of the foregoing, this indemnification obligation specifically includes, but is not limited to, Claims relating to alleged copyright infringement, defamation, products liability, any deceptive acts or practices as defined under New York General Business Law § 349, fraud, or any negligent or grossly negligent act or omission of Developer or its officers, agents, or employees.

In accordance with applicable New York law, Developer’s indemnification obligation shall survive the expiration or termination of this Agreement for any reason. Developer shall pay for the defense of any such action unless Developer and the Indemnified Party mutually agree that the Indemnified Party will assume the defense. The Indemnified Party shall provide Developer with prompt written notice of any Claim for which indemnification is sought and shall reasonably cooperate in the defense at Developer’s expense, provided that any failure to provide such notice shall not relieve Developer of its indemnification obligation except to the extent that Developer is materially prejudiced by such failure.

9.2 Customer Indemnification.
Customer shall indemnify, defend, and hold harmless (including payment of reasonable attorneys’ fees) Developer, its directors, officers, employees, and agents (each, an “Indemnified Party”) from and against all Claims arising out of or in connection with (a) the Customer Materials provided by Customer to Developer pursuant to this Agreement, or (b) any acts or omissions of Customer in relation to its dealings with third parties in connection with the services performed under this Agreement, to the fullest extent permitted by the laws of the State of New York. Without limiting the foregoing, this indemnification obligation specifically includes, but is not limited to, Claims relating to alleged copyright infringement, defamation, products liability, any deceptive acts or practices as defined under New York General Business Law § 349, fraud, or any negligent or grossly negligent act or omission of Customer or its officers, agents, or employees.

In accordance with applicable New York law, Customer’s indemnification obligation shall survive the expiration or termination of this Agreement for any reason. Customer shall pay for the defense of any such action unless Customer and the Indemnified Party mutually agree that the Indemnified Party will assume the defense. The Indemnified Party shall provide Customer with prompt written notice of any Claim for which indemnification is sought and shall reasonably cooperate in the defense at Customer’s expense, provided that any failure to provide such notice shall not relieve Customer of its indemnification obligation except to the extent that Customer is materially prejudiced by such failure.

10.1 Acknowledgment Page and Hyperlink.
Customer shall acknowledge Developer as the Web Site developer in text on an “acknowledgment page” (or similarly named page) of the Web Site, which will include a hyperlink to Developer’s site on the World Wide Web. The exact format of such development credit shall be at the sole discretion of Customer, provided that the text and hyperlink are reasonably visible. It shall be the responsibility of Developer to provide Customer with any necessary information to create and update such hyperlink.

10.2 Duration of Developer Credit.
Lump-Sum Payment: If the total fee for Services is paid on a lump-sum basis (pursuant to Section 2.1 or any applicable Statement of Work), the development credit will remain on the Web Site for ten (10) years from the initial date the Site goes live (“Initial Display Date”), or until the Agreement is terminated, whichever occurs later.

Subscription (Installment) Payment: If Customer is paying for the Services under a subscription or installment plan (pursuant to Section 2.2 or any applicable Statement of Work/Supplement), the development credit shall remain on the Web Site for the entire duration of the subscription term, including any renewals.

10.3 Rights and Limitations.
The inclusion of this development credit shall not confer upon Developer any trademark, copyright, or other proprietary interest in the Web Site beyond what is expressly granted elsewhere in this Agreement.

Nothing in this Section 10 shall be construed to require Customer to promote the Site actively. The level of effort and spending in any promotional activities shall remain solely in Customer’s discretion.

In the event of a rebranding or major redesign during the required credit display period, Customer shall continue to display Developer’s credit and hyperlink in a manner reasonably consistent with the new design, unless otherwise agreed in writing.

11.1 Initial Term and Renewal.
This Agreement shall commence on the Effective Date. The initial term for the Services, including any Maintenance and Support under Section 13.1, shall continue for the period specified in the applicable Statement of Work or as otherwise agreed upon in writing by the parties. The annual maintenance subscription shall be non-cancelable for the first one (1) year of service. Following the expiration of this initial term, the Agreement (including Maintenance and Support) may automatically renew on an annual basis at the then-current rate, subject to New York’s Automatic Renewal Law (NY GOL §§ 5-903, 5-903-a). Developer shall provide clear disclosure of the renewal terms and cancellation options prior to any renewal, in compliance with these statutory requirements. The Agreement may also be renewed with revised terms, conditions, and fees upon mutual written agreement by both parties.

11.2 Termination for Cause.
Either party (the “Non-Breaching Party”) may terminate this Agreement at any time by providing written notice to the other party (the “Breaching Party”) if the Breaching Party or any of its employees, consultants, or agents violates a material provision of this Agreement and fails to remedy such violation within a reasonable period (for example, thirty (30) days) after receiving written notice of the violation. Termination for cause may also occur if the Breaching Party terminates or suspends its business, becomes subject to bankruptcy or insolvency proceedings under federal or state law, or becomes subject to the direct control of a trustee or similar authority; or if continued performance of the Services materially and adversely affects the ability of either party to conduct its business for any reason and such effect cannot be cured within a reasonable period. In the event any such circumstance arises, the affected party shall immediately notify the other party in writing of its occurrence, and the Non-Breaching Party may terminate this Agreement effective immediately or as stated in its notice of termination.

11.3 Effect of Termination.
Upon expiration or termination of this Agreement for any reason, Developer shall promptly return or destroy (at Customer’s election) all materials that, under Section 6 or other relevant provisions of this Agreement, are owned by Customer. Expiration or termination shall not relieve either party of any payment obligation that has accrued or become due prior to the effective date of termination. Developer shall issue a final invoice for all Services performed through the date of termination, which Customer shall pay in accordance with Section 2 of this Agreement. If Customer terminates this Agreement for convenience or without cause within the first one (1) year of the annual maintenance subscription, Customer remains liable for the full Annual Maintenance Fee for that year. However, if Customer terminates for cause in accordance with Section 11.2, no further Annual Maintenance Fee shall be due beyond amounts earned or accrued up to the date of termination. If Developer terminates for cause, Customer remains liable for the pro rata share of the Annual Maintenance Fee through the date of termination. The confidentiality obligations in Section 12 shall survive any termination or expiration of this Agreement. Upon full payment of any outstanding amounts by Customer, Developer shall turn over to Customer all Custom Work Product (as defined in Section 6) developed through the date of termination or expiration, subject to any continuing licenses or rights provided herein. If applicable, Developer’s obligations under any Source Code Escrow Agreement shall likewise survive termination of this Agreement to the extent necessary to fulfill the escrow requirements.

11.4 Source Code Escrow.
Developer agrees to negotiate in good faith and enter into a Source Code Escrow Agreement (“SCEA”) with Customer and a third-party escrow agent (“Escrow Agent”) covering the deposit and release of relevant source code, as further described in this Agreement. The obligations under this Section survive termination for any reason, to the extent necessary to effectuate the escrow arrangement.

12.1 Confidential Information.
“Confidential Information” shall mean a party’s information that is not generally known by nonparty personnel, used by the party and which is proprietary to the party or the disclosure of which would be detrimental to the party.  Confidential information includes, but is not limited to, the following types of information (whether or not reduced to writing or designated as confidential): computer scripts, software or routines; internal personnel, financial, marketing, and other business information, and manner and method of conducting business; strategic, operations, and other business plans and forecasts; information relating to the party’s employees, customers, vendors, or other contractors; and the existence of a contractual relationship between the parties.  Confidential Information shall not include any information which is or becomes generally available to the public without breach of this Agreement, which is in the possession of a party prior to its disclosure by the other party, or becomes available from a third party not in breach of any obligation of confidentiality to the disclosing party.

12.2  Nondisclosure.
Each party agrees not to use, disclose, sell, license, publish, reproduce, or otherwise make available the Confidential Information of the other party except and only to the extent necessary to perform under this Agreement.  Each party agrees that the Confidential Information of the other party shall be held in strict confidence and shall not be used or disclosed without the express written consent of the other party, except as may otherwise be required by law.  Each party shall use reasonable measures to secure and protect the other party’s Confidential Information, including measures at least as strict as those such party uses to protect its own Confidential Information, and to take appropriate action by instruction or agreement with its employees, consultants, or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Agreement.

12.3 Exclusion.
Information that (a) becomes public without breach, (b) is already in the recipient’s possession without obligation of confidentiality, or (c) is lawfully obtained from a third party without a confidentiality breach, is not considered Confidential Information.

13.1 Maintenance and Support.
During the term of this Agreement, Developer shall provide ongoing maintenance and support for the Deliverables at a standard annual subscription fee of three thousand six hundred dollars (USD $3,600) per year (“Annual Maintenance Fee”) - or such other amount as specified in Schedule A or any applicable SOW. The Annual Maintenance Fee is non-refundable and covers a continuous twelve-month period, enforceable for no less than one (1) year from the start of the maintenance term. This fee covers the following services: