Personified Terms & Conditions

These terms and conditions, effective as of July 1, 2008, are applicable to the Statement of Work (the “SOW”) entered into between you (the “Client”) and Personified, LLC (“Personified”) and are fully incorporated into that SOW as if fully set forth therein.  These terms and conditions (as they may be amended from time to time by Personified) and the SOW form a binding agreement (the "Agreement") between you and Personified.

1.         Services.  Personified agrees to provide Client with the services described herein and specified more fully in the SOW (the “Services”).

2.        Payment.  Client will pay Personified the fees and expenses specified for the Services according to the terms described in the SOW.

3.         Term.   This Agreement shall commence as of the date of the SOW (the “Effective Date”) and, unless sooner terminated in accordance with its terms, shall terminate as of the date indicated in the SOW. 

4.         Consultants.  As part of the Services hereunder, Personified may supply Client with consultants who will perform Services (the “Consultants”).  It is understood and agreed that any Consultants supplied to Client by Personified under this Agreement may be independent contractors and may not be Personified’s employees.  Accordingly, the parties agree that any such Consultants shall have no authority to bind Personified or to act as Personified’s agent.  Client agrees that in connection with the Services, Personified will have sole responsibility for handling all billing and contract negotiations. 

5.         Confidentiality. 

5.1        Definition.  “Confidential Information” is all information proprietary to either party whether or not marked “confidential”, which constitutes trade secrets as construed by law, including  methodologies and system implementation plans, confidential business information, financial data, financial plans, products plans, lists of actual or potential customers or suppliers, sales volumes and other sales statistics, costs, personnel data, profit margins, financial needs, statistical data regarding product tests, performance and reliability, pricing, manuals, marketing and development plans or other non–public financial information about the parties or their affiliated companies.  Information publicly known that is generally employed by the trade at or after the time a party first learns of such information, or generic information or knowledge which such party would have learned in the course of a similar engagement or work elsewhere in the trade, for purposes of this agreement, shall not be considered Confidential Information.

5.2        Nondisclosure.  Each party agrees not to disclose to anyone or use any Confidential Information, other than as contemplated under this Agreement, without the written authority of an officer of the other party.  In addition, each Consultant shall be bound by the same confidentiality obligations described herein, as it relates to Client’s Confidential Information. 

6.         Rights in Information and Materials.

6.1        Intellectual Property.  Client understands and agrees (i) that Personified retains ownership of any materials, methodologies, implementation plans or other intellectual property used during the provision of Services (the “Personified Materials”) and (ii) the Personified Materials and all right, title and interest in and to such Personified Materials are the sole property of Personified.  Except for the limited licenses expressly granted to Client in this Agreement, Personified reserves for itself and its licensors all other right, title and interest. Without limitation on the foregoing, Client may not reproduce, modify, display, sell, or distribute the Personified Materials, or use it in any other way for public or commercial purpose.  The Personified Materials are not considered to be works for hire and Client will duplicate such Personified Materials only for the purposes outlined in the SOW.  “Personified,” the Personified design logo and certain other names or logos are service marks or trademarks of Personified, and all related product and service names, design marks and slogans are the service marks or trademarks of Personified.

6.2.       License.  Personified hereby grants Client an irrevocable, non-exclusive license to use the Personified Materials and Services for its internal use only.  Client may not sell, transfer or assign the Services or its rights to same (including access to the Personified Materials) provided by Personified to any third party without the express written authorization of Personified.

7.         Termination.  Notwithstanding any termination provisions contained in the SOW, any party may terminate this Agreement in the event that the other party fails to cure a material breach of this Agreement within 30 days after receiving written notice of such breach. 

8.         Limitations of Liability.  THE PARTIES WILL NOT BE LIABLE TO ONE ANOTHER UNDER THIS AGREEMENT FOR:  (A) SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, PROFITS OR BUSINESS; OR (B) DAMAGES IN EXCESS OF THE AMOUNT PAYABLE BY CLIENT TO PERSONIFIED FOR THE SERVICES.  NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THIS SECTION SHALL NOT APPLY TO ANY PAYMENT AND INDEMNIFICATION OBLIGATIONS DESCRIBED IN THIS AGREEMENT.

9.         Indemnification.  Each party (the “Indemnifying Party”) to this Agreement will defend the other party (the “Indemnified Party”) and its affiliates and its and their employees, directors, officers and agents, against any third party allegations, demands, suits, investigations, causes of action, proceedings or other claims (“Third Party Claims”), and will indemnify and hold harmless such persons and entities from all damages, liabilities, judgments, costs and expenses (including attorneys’ fees and court costs) and other such losses to the extent arising in connection with such Third Party Claims and to the extent caused by, any of the following:  (a) personal injury or property damage caused by the Indemnifying Party or any third party under such party’s control; (b) infringement or misappropriation of any intellectual property rights (including, without limitation, patents, copyrights, trademarks, trade secrets, etc.) by the Indemnifying Party in connection with any material provided by such party to the other for use in connection with this Agreement or used by the Indemnifying Party in connection with the performance of this Agreement; (c) any breach or alleged breach by the Indemnifying Party of any representation, provision, warranty, or agreement hereunder or pursuant to or contemplated by this Agreement.  The Indemnified Party will provide the Indemnifying Party with prompt notice of any Third Party Claim for which its seeks indemnification under this Section 5, provided that the failure to do so will not excuse the Indemnifying Party of its obligations under this Section 5 except to the extent prejudiced by such failure or delay.  The Indemnifying Party will defend any such Third Party Claim and have the sole right to control the defense and settlement of the Third Party Claim, provided that the Indemnifying Party may not, without the Indemnified Party’s consent, enter into any settlement which admits guilt, liability or culpability on the part of the Indemnified Party.  The Indemnified Party will provide reasonable cooperation to the Indemnifying Party in defending any Third Party Claim.

10.        Warranties; Disclaimers. PERSONIFIED HEREBY DISCLAIMS ANY AND ALL WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PERSONIFIED IS NOT AN EMPLOYMENT AGENCY OR A RECRUITING FIRM, AND MAKES NO REPRESENTATIONS OR GUARANTEES REGARDING THE EFFECTIVENESS OF THE SERVICES OR TIMELINESS OF THE SERVICES IN MEETING THE EMPLOYMENT OBJECTIVES OF CLIENT. PERSONIFIED DOES NOT GUARANTEE THAT THE SERVICES WILL RESULT IN CANDIDATES BEING HIRED, POSITIONS BEING FILLED OR EMPLOYEES BEING RETAINED, AND IS NOT RESPONSIBLE OR LIABLE FOR ANY BUSINESS OR EMPLOYMENT DECISIONS, FOR WHATEVER REASON MADE, MADE BY CLIENT.

11.        Miscellaneous.  This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings, written or oral, regarding such subject matter.  Personified may revise this Agreement at any time by updating this page. Changes will be binding on the Client on the date they are posted on this website (or as otherwise stated in any notice of such changes). Any new or different terms supplied by Client are specifically rejected by Personified unless Personified agrees to them in a signed writing specifically including those new or different terms. This Agreement is governed by the internal laws of the State of Illinois, without regard to its conflicts of law principles.  Neither party can assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld.