RAW DATA INC TERMS AND CONDITIONS

These Terms and Conditions (“Terms”) are appended to and made a part of the statement of work presented by Raw Data Inc (“Raw Data”). Acceptance by you (“Client”) of Raw Data’s statement of work indicates your acknowledgment that you have reviewed these Terms, that they apply to the project described more fully in the statement of work (“Project”) and your agreement to them.

Raw Data and Client agree as follows:

RAW DATA’S SERVICES:

  1. Raw Data will provide the services described in its proposal to the best of its ability and in a professional manner. In order to facilitate this, Client agrees to provide Raw Data with the textual and illustrative content and other materials as noted in the proposal or as separately requested by Raw Data in a form and style suitable for Raw Data’s use in connection with the Project.
  2. Raw Data may utilize the services of subcontractors to complete elements of the Project and agrees to supervise any subcontractors selected by Raw Data.
  3. Raw Data and Client agree that Raw Data is an independent contractor and is not an agent or employee of Client. Raw Data acknowledges that Client will not make deductions from Client’s payments to Raw Data for income taxes, social security, unemployment insurance, workers’ compensation or other employment/payroll taxes. As an independent contractor, Raw Data acknowledges that its members, employees, or subcontractors are ineligible to participate in any employee benefit plan, insurance coverage, or other benefits program that Client may provide to its own employees.
  4. If Raw Data’s services involve on-boarding of or modification to Client’s credit card processing, Raw Data and Client agree that it is the Client’s responsibility to establish and maintain PCI compliance. Client agrees to provide Consultant with a copy of each quarterly scan prepared by Client’s security firm and a copy of Client’s annual SAQ (Self Assessment Questionnaire) submitted in anticipation of securing a PCI compliance certificate. Client agrees to provide such materials in a timely manner but in no event later than ten (10) business days of Consultant’s request for such materials. In the even Client fails to establish and maintain PCI compliance, Consultant may terminate the Project by written notice to Client. Such termination by Consultant shall be made without further obligation or liability on the part of the Consultant, and Consultant shall have the right to retain any sums theretofore paid to Consultant and to immediately receive any sums then owed to Consultant by Client.

COMPENSATION:

  1. Client agrees to pay Raw Data the amounts specified upon the milestones noted in the statement of work. Raw Data will issue invoices to Client for fees and expenses then due. Client agrees to pay Raw Data’s fees and expenses in a timely manner after receipt of Raw Data’s invoices, but in no event later than 30 (thirty) days after the date of such invoice. Invoices not paid in a timely manner will accrue interest at the rate of 1.5% monthly (18% annually). Client will make such payments by check payable to Raw Data unless other payment arrangements are agreed prior to the payment due date.
  2. Unless noted otherwise in the proposal or specifically agreed in writing by Raw Data: Raw Data’s hourly rate is $135.00 (one hundred thirty-five U.S. dollars); this hourly charge will be incurred on all time spent by Raw Data in performance of its services on the Project, including but not limited to time spent on Client- and/or Project- specific research; on meetings with Client, whether in person or by telephonic or other electronic means; on meetings with third parties directly related to Raw Data’s services on the Project; and on Raw Data’s travel and waiting time, both local and out-of-town.
  3. Client agrees to pay all out-of-pocket expenses incurred by Raw Data in connection with the Project. Such expenses include, but are not limited to: long-distance telephone and fax charges; messenger, overnight courier, and other delivery fees; postage; photocopying and other reproduction costs; travel costs including parking, mileage, transportation, meals, and hotel costs; third party fees; research costs; domain registration, SSL certificate, hosting, and similar fees.
  4. Client understands and agrees that fees outlined in the proposal are Raw Data’s best estimates based on information provided by Client and by the costs of materials and services at the time the proposal was prepared. Should Raw Data anticipate or learn that fees and expenses will exceed sums noted in the proposal, Raw Data will confer with Client, and Client and Raw Data will mutually agree whether and how to proceed. Should Client not wish to incur additional fees or expenses, Raw Data will suspend its services, without further obligation or liability to Client. Under no circumstances shall Raw Data be expected or required to provide services or to incur expenses without compensation by Client, regardless of whether Raw Data has rendered all services described in the proposal.
  5. Client acknowledges that fees noted in the proposal are based largely on specifications and information provided by Client and on Raw Data’s expectation of Client’s cooperation with Raw Data’s requests for materials, information, guidance, and timely Client reviews and approvals. Client understands that its decision to modify its specifications or expectations for the Project, to delay its review or approval requested by Raw Data, or to elect not to deliver materials in the form and style or on the schedule required by Raw Data may result in fees and expenses in excess of those noted in the proposal and/or a modification of the Project schedule outlined in the proposal.
  6. Should Client request that Raw Data stop work on the Project temporarily or to cease work on the Project, Client will be immediately responsible for payment to Raw Data of all fees and expenses incurred by Raw Data as of the date of Client’s request. In the event Raw Data has completed substantially all work required for a particular phase of a Project at the time of Client’s request, Client acknowledges and agrees that the entire payment for such phase shall be due Raw Data. In the event Raw Data has not completed substantially all work required for a particular phase of a Project at the time such request is made by Client, Client agrees to pay Raw Data for the number of hours incurred at the hourly rate referenced above along with reimbursement for all expenses incurred.
  7. Should Client desire Raw Data’s advice or assistance regarding matters related to the Project but not specified in the statement of work, or should Client desire Raw Data’s referral to specialists in other matters related to the Project or subsequent to Raw Data’s work on Client’s behalf, Raw Data’s fees and expenses for such additional advice and assistance shall be billed to Client at Raw Data’s hourly rate referenced above or for a fee to be separately mutually agreed. Client understands that arrangements for third-party services may be subject to separate agreements between Client and such third parties, and Raw Data cannot and does not make any representations, guarantees, or warranties regarding such third parties’ services.

OWNERSHIP OF WORK PRODUCT:

  1. Except as otherwise noted herein, with respect to custom applications produced by Raw Data, and subject to Client’s payment in full of all sums due Raw Data, Raw Data grants to Client a nonexclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide (i) license to make, have made, and prepare derivative works of the source code (either directly or through contractors), and (ii) sublicenseable (through multiple tiers) license to make, have made, sell (only as incident to the license), offer for sale, import, use, reproduce, distribute (through multiple tiers), publicly perform, and publicly display any executable code versions of the source code, in any media now known or hereafter known.
  2. Except as otherwise noted herein, with respect to websites developed by Raw Data, and subject to Client’s payment in full of all sums due Raw Data, Client shall own all right, title, and interest in and to the website.
  3. Client understands and agrees that Raw Data may use its own and/or may purchase third party licenses for products or services that are necessary for Raw Data to design and develop the application and/or website described in the proposal (“Licensed Content”). Client understands that Licensed Content may be owned by Raw Data or by third parties and that Licensed Content shall remain the property of Raw Data and/or such third parties. Licensed Content owned and/or purchased by Raw Data may be used in the design and/or development of other websites.
  4. Client understands that the design and development of the application and/or website may include source code, documentation, and/or other elements that were previously developed by Raw Data and modified to meet Client’s specific requirements (“Extant Material”). Raw Data shall own all worldwide right, title, and interest in and to the Extant Material but shall provide Client (upon payment in full of all sums due Raw Data) a nonexclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license to use the Extant Material.
  5. Unless specifically agreed to the contrary, Raw Data and its subcontractors retain the right to display elements of the application and/or website as examples of their work in their portfolios.

WARRANTIES/INDEMNIFICATION:
Raw Data hereby represents and warrants that it is free to provide the services described in its proposal. Client hereby indemnifies and agrees to hold Raw Data harmless from any liability, loss, damage, cost, and expense, including attorney’s fees and costs of settlement, for or in connection with any claim, action, or proceeding arising out of Client’s exploitation of the products of Raw Data’s services. Client’s indemnity will survive the conclusion of the Project and termination or expiration of this agreement.

DISCLAIMER:
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, RAW DATA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO ITS SERVICES AND THE PRODUCTS RESULTING FROM ITS SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, COURSE OF DEALING OR USAGE IN THE TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA SYSTEM INTEGRATION, AND ALL WARRANTIES RELATING TO RESULTS TO BE DERIVED FROM SERVICES AND MATERIALS IT PROVIDES TO CLIENT OR OTHER MATERIALS PROVIDED AS PART OF THE PROJECT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE SERVICES NOT CONTAINED IN THESE TERMS AND CONDITIONS OR IN RAW DATA’S PROPOSAL TO CLIENT SHALL BE DEEMED TO BE A WARRANTY BY RAW DATA. THE EXPRESS WARRANTIES SET FORTH HEREIN ARE IN LIEU OF ALL OTHER LIABILITIES ON THE PART OF RAW DATA ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF THE SERVICES AND MATERIALS. CLIENT ACKNOWLEDGES THAT IT IS A SOPHISTICATED PARTY TO THIS AGREEMENT AND RECOGNIZES AND AGREES THAT THIS PROVISION IS AN INTEGRAL PART OF RAW DATA’S PRICING AND AN IMPORTANT FACTOR IN ITS WILLINGNESS TO PERFORM SERVICES HEREUNDER. RAW DATA MAKES NO 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.

LIMITATION OF LIABILITY:
IN NO EVENT SHALL RAW DATA BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING AS A RESULT OF RAW DATA’S PARTICIPATION IN THIS PROJECT, OR LOSS OF DATA OR ANY PERFORMANCE, EVEN IF SUCH RAW DATA HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM REMEDY AVAILABLE TO CLIENT IS THE AMOUNT PAID BY CLIENT IN CONNECTION WITH THE PROJECT.

ENTIRE AGREEMENT:
This Agreement will be deemed made in the State of California, and is subject to and will be construed in accordance with the laws of said state applicable to agreements wholly to be performed therein, merges all prior representations and collateral understandings, memorandums, and agreements; and constitutes the entire understanding between Raw Data and Client. Neither party will be bound by any modification of the accepted proposal including these Terms unless made in writing and signed by the parties. If any provision of these Terms is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of these Terms will be severable and remain in effect.