Master Service Agreement (MSA)

This Master Service Agreement (“MSA”) is hereby entered into between Palm Small Business Marketing (“PALM”) with offices at 2040 N. Loop 336 W Suite 124, Conroe TX 77304, and the undersigned (“You” or “Client”) and governs the purchase of all services outlined and agreed within this Agreement and attached Proposal, Order Form, and/or Statement(s) of Work.

PALM is an agency offering various services including but not limited to strategic consulting, web development, landing page and microsite development, multimedia development, search engine marketing, social media marketing and optimization, email marketing, and managed hosting. Client desires to engage PALM on a non-exclusive basis to render, and PALM desires to render to Client certain services, all as set forth in this Agreement and attached Proposal, Order Form and/or Statement(s) of Work under the terms provided herein.

NOW THEREFORE, in consideration of the mutual promises, covenants and agreements set forth below and other good and valuable consideration, the sufficiency of which is hereby admitted, the parties agree as follows:

  1. Definitions
    1. “Project” shall mean the website, web application or product to be developed by PALM for use by Client in accordance with this Agreement. As used herein, the term “Project” includes the source code, object code, executable files, graphics and any supplemental files needed to maintain or operate the Project and any documentation relating to the Project including without limitation all relevant commentary, flow charts, algorithms, and subroutine descriptions, memory and overlay maps and other documentation of the source code.
    2. Statement of Work. “Statement of Work” means the full list of services provided by PALM to Client under this Agreement.
    3. Technical Specification. “Technical Specification” means the specifications that describe the architecture and programming of the Project.
    4. “Deliverables” means all items to be produced and delivered by PALM or Client hereunder, including the associated documentation.
    5. “Milestones” means any task to be completed by PALM or Client by a specified date in accordance with the Deliverables Schedule.
    6. Deliverables Schedule. “Deliverables Schedule” means the description of the Milestones and Deliverables to be delivered and the dates by which each Milestone is to be completed and each Deliverable is to be delivered to PALM and Client.
    7. Production Schedule. “Production Schedule” means a detailed schedule containing all content creation including writings and graphics Production for the Project.
    8. Composite or Comp. “Composite or Comp” means the storyboards and/or graphic treatments produced at the beginning of the design process to solidify the look and feel of the Project.
    9. Pre-Alpha. “Pre-Alpha” means the version of the Project, which is useful for preliminary interface and usability testing, where various elements are made functional, but are not necessarily completed or integrated with one another.
    10. “Alpha” means the first complete version of the Project, containing all features, where the Project is tested for stability and bugs are fixed.
    11. “Beta” means the close to completed Project, except for the final fixing of any remaining bugs and optimizing the code for better performance.
    12. Source Code. “Source Code” means the computer programs in human-readable form, including programmers’ comments, data files and structures, header and include files, macros, object libraries, and technical specifications.
    13. “Fees” means all fees paid by Client to PALM for the Services rendered by PALM under this Agreement or any other Agreement.
    14. “Launch,” means the first general release of the Project in a form fully accessible and operable by users of Client.
    15. Launch Date. “Launch Date” means the date on which the Project is commercially launched and viewable online.
    16. “Consulting,” means any time spent by PALM with Client or on Client’s project such as but not limited to e-mails, conference calls, meetings, and research and project management.
  2. PALM shall develop the Project in accordance to the Statement of Work hereto annexed as Exhibit A, the Technical Specifications hereto annexed as Exhibit B (if applicable) and the Production Schedule hereto annexed as Exhibit C (to be identified by PALM and approved by Client) if applicable. Client shall provide PALM with all items specified in the Client Deliverables Schedule. PALM shall develop, produce, complete and deliver the Deliverables to Client, all in conformity with the Statement of Work, Technical Specifications and Production Schedule. PALM shall consult with Client throughout the development of the Project. Client shall have the right, at Client’s expense, to send Client personnel to PALM’s place of business upon reasonable notice during normal business hours for consultation with respect to the Project’s development.
  3. Client engages PALM to render and PALM agrees to render to Client, the services as described in the attached Statement(s) of Work, which may be implemented through additional Statements of Work, Technical Specification, Production Schedules and Deliverable Schedules, which shall at a minimum include a description of the services to be provided and the corresponding fees. Client hereby accepts such engagement, subject to the terms and conditions of this Agreement, the Statement(s) of Work, and any terms and conditions attached to the Statement(s) of Work. If there is any difference between the terms and conditions attached to any Statement of Work and any other portion of this Agreement, the terms attached to the Statement of Work shall control.
  4. Change Request; Administration. Statement(s) of Work shall require execution by Client of a written Change Request to this Agreement (a “Change Request”). Each Change Request shall be deemed to be an amendment to the applicable Statement of Work and will become part of this Agreement.
  5. Method of Performing Services and Allocation of PALM Resources. PALM shall determine the method, details, and means of performing the services hereunder. PALM may engage subcontractors to perform any of the Services provided hereunder. PALM shall retain the right to perform any and all services for other clients. PALM recommends that an additional fifteen (15) percent of fees be anticipated as a budget contingency. If activities require additional time or resources beyond the cost estimate(s), Client will only be billed for actual time incurred. PALM will track actual fees against the estimated budget and will alert Client if exceptional overages are anticipated prior to incurring fees above the fifteen (15) percent contingency. The cost estimates outlined in the Proposal, Order Form and/or attached Statement(s) of Work is an estimate for professional services and does not cover out-of-pocket expenses, such as vendor purchases and expenses, travel, messenger and delivery services, wire service distribution of news releases, production costs, postage, etc. Client has the option of paying vendors directly for these services; if paid for by PALM, an 18 percent mark-up may be applied.
  6. Term and Termination. This Agreement shall be effective when signed by Client and thereafter shall remain in effect for twelve (12) months unless another time frame is specified within the Proposal and and/or Order Form and will automatically renew at the end of the Initial Term for the same period as the Initial Term unless terminated pursuant to the provisions of this Section 4.
    • Termination for Non-Payment. In the event that Client defaults in the payment of any amount due to PALM hereunder and does not cure such default within thirty (30) days of the date of the invoice, then PALM may, by issuing written notice thereof to Client, terminate this Agreement as of a date specified in such notice of termination; provided, that PALM first provides Client with fifteen (15) days advance written notice in order to afford Client the opportunity to cure such failure.
    • Termination without Cause. If Client terminates Services prior to the end of the Term, (a) PALM shall not be obligated to refund any fees paid in advance of such termination and (b) Client shall be required to pay the standard monthly fees for each month remaining in the term, unless otherwise expressly provided herein. Either party may elect not to renew the Agreement without penalty after the initial Term with a Thirty (30) day prior written notice to the other.
    • Termination for Cause. Either party may terminate this Agreement for “cause” (as defined below) immediately upon written notice to the other party; “cause” shall mean (i) the other party files a voluntary petition in bankruptcy, makes an assignment for the benefit of creditors of all or substantially all of its assets, fails to secure dismissal of any involuntary petition in bankruptcy within sixty (60) days after the filing thereof, or petitions for reorganization, liquidation, or dissolution under any federal or state bankruptcy law or similar law; (ii) the other party violates, or fails to perform or observe, any material term or condition of this Agreement for more than thirty (30) days after receipt of written notice that it is so violating or failing and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice.
    • Effect of Termination. Upon any termination of this Agreement, Client shall be obligated to pay PALM for all services rendered pursuant to any outstanding Statement(s) of Work through the effective date of such termination. During the initial twelve (12) month period of this Agreement, in the event of any termination or cancellation by Client of the Agreement, except for a Termination for Cause by Client under Section 4.3, Client shall pay PALM any outstanding balance due under this Agreement.
    • Termination of an Individual Statement of Work. In the event that either party hereto materially defaults in the performance of any of its duties or obligations under a Statement of Work (except for a default in payment to PALM and does not substantially cure such default, or commence a cure, within thirty (30) days after being given written notice specifying the default, then the non-defaulting party may, by given written notice thereof to the defaulting party, terminate the Statement of Work as of a date specified in such notice of termination. Upon termination of a Statement of Work, Client shall be obligated to pay PALM for all services rendered pursuant to the Statement of Work through the effective date of such termination, except to the extent that such termination was due to PALM default in the performance of any of its duties or obligations under such Statement of Work. Upon payment by Client, PALM shall deliver the deliverables for the applicable Statement(s) of Work, including any work in progress. Termination of a Statement of Work shall have no effect upon the Agreement or any other Statements of Work that may be in effect under this Agreement.
    • Unless terminated by the parties as set forth herein, the Agreement shall be automatically renewed twelve (12) months from the date of execution, for an additional twelve (12) month term.
  7. PALM Obligations. PALM agrees to provide Client with the Services as described in the Proposal, Order Form and/or attached Statement(s) of Work. PALM is authorized to use all ethical and industry accepted means to produce desired results.
  8. Notwithstanding anything to the contrary contained in the Deliverables Schedule, PALM shall deliver to Client all items specified in the Deliverables Schedule.
  9. Client shall have the right to test each Deliverable in accordance with the “Acceptance Period” set forth in the Production Schedule. Client may request modifications to the deliverable in writing during the Acceptance Period or the Deliverable shall be deemed accepted by Client. Client’s rejection of any Deliverable shall be in good faith. In the event Client rejects the Deliverable and requests modifications, PALM shall make such modifications to the Deliverable in a timely manner. Upon the making of such modifications and redelivery to Client, Client shall have the right to test the Deliverable in accordance of the Acceptance Period. In the event that Client’s written approval or disapproval is delayed beyond the Acceptance Period, PALM’s commitments under this Agreement shall be extended to the extent necessary, up to a period of time equivalent to Client’s delay.
  10. License Grant. Subject to compliance by Client with the terms hereof, PALM hereby grants to Client a personal, non-exclusive, non-transferable, non-resalable license to install, use, and execute the Project at the Approved Locations and on the Configuration for use (as specified in the Proposal Document and/or Statement of Work). Additional licenses will require payment of additional licensee fees to PALM. PALM’s grant to Client does not include any right to sublicense such rights. No exclusive right of any kind is granted to Client by the terms of this Agreement, and all rights not expressly granted are reserved to original developer of said application.
  11. Client Key Employee. During the period in which PALM is performing Development Services, Client shall designate a Client agent (“Client Key Employee”) who shall be PALM’s primary Client contact. The Client Key Employee’s responsibilities shall be to facilitate information requests from PALM, arrange meetings with Client’s technical, marketing and other staff as needed and review the progress of PALM’s development of the Project. Only Project related work requests received by PALM from the Client’s designated Key Employee shall be deemed valid.
  12. Warranties. Client warrants that he/she has full power and authority to enter into the agreement. PALM warrants that all Services will be performed consistent with generally accepted industry standards. This warranty shall be valid for the period of the Agreement. Client uses PALM’s Services at Client’s own risk. PALM, its officers, directors, employees, affiliates, agents, contractors, third-party information, PALM’s merchants, licensors and the like, do not warrant the Services will be uninterrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the Services, or as to the accuracy or reliability of any Content, Project, service, or merchandise provided through the Services. PALM disclaims all other warranties, either express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, with respect to the services. The services are provided on an “as is, as available” bPalms. No warranties express or implied, including, but not by way of limitation, those of merchantability, fitness for a particular purpose or of non-infringement, are made with respect to the services or any content or software therein. Some states do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to Client.
  13. Source Code. Upon final payment to PALM, Client shall have the right, upon written request, to receive a copy of the source code for all Projects provided by PALM, subject to the license grant provided in Article 10. Client shall be granted the additional license to create derivative works from such source code, but such derivative works are subject to the license restrictions provided in Article 10. In the event that Client obtains the source code and derivative works from such source code are created, the warranty provisions herein terminate.
  14. Copyright & Intellectual Property. Client must own or obtain the copyright or licenses to all data, files and graphic logos submitted by Client to PALM. Client grants PALM the rights to publish and use such material. Client must obtain permission and rights to use any information or files that are copyrighted by a third party. Client is further responsible for granting PALM permission and rights for use of the same and agrees to indemnify and hold harmless PALM, its officers, directors, employees, affiliates, agents, contractors, third-party information PALM’s, merchants, licensors and the like from any and all claims resulting from the Client’s negligence or inability to obtain proper copyright permissions. Submitting any material to PALM that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, software piracy, and patents held by individuals, companies or other entities or activity that violates privacy, publicity, or other personal rights of other individuals, companies or other entities is strictly prohibited.
  15. Intellectual Property Rights. In the course of this Agreement, PALM may use source-code, enhancements, discoveries, processes, methods, designs and know-how, whether or not copyrightable or patentable, which PALM conceived during the course of other agreements. In addition, PALM may independently develop source-code, enhancements, processes, methods, designs or know-how during the term of this agreement and Client acknowledges that PALM retains ownership to those source codes, discoveries, processes, methods, designs and in its business operations with other Clients. This Project may include pre-developed source code created by PALM. This source-code is licensed to Client and remains the property of PALM. Such source code may not be distributed, modified or re-licensed without the express written consent of PALM.
  16. Client shall compensate PALM for all Services described in the Statement of Work and the Proposal Document. Fees are based on allocated time and materials. Fees shall commence upon the date set forth in, and shall be payable thereafter in accordance with, the Agreement. Applicable taxes are in addition to the Fees. All Fees shall be paid by Client and are due upon receipt of invoice. Client shall reimburse PALM for all reasonable out?of?pocket expenses actually incurred by PALM in performance of the Services. Monthly service fees are due in advance each month. If Client fails to pay any amount due within thirty (30) days after the due date of the invoice, late charges of the lesser of 1.5% per month (annual rate of eighteen percent, or the maximum allowable under applicable law shall also become payable by Client to PALM). In addition, failure of Client to pay any invoiced amount within sixty (60) days after the date of the invoice shall be deemed a material breach of this Agreement, justifying PALM’s suspension of the performance of the Services, and shall be sufficient cause for termination of this Agreement by PALM. Checks returned for insufficient funds will be assessed a return charge of $29 and Client’s account will immediately be considered to be in breach until full payment is received. Termination under this Section shall in no event relieve Client of its payment obligations under this Agreement. Client further agrees that, in the event of any termination of this agreement or the proposal by client, the PALM is hereby authorized to charge client’s credit card account or other payment mechanism for any amounts owed from time to time by client to PALM. Client agrees to pay PALM reasonable expenses, including attorney fees and costs for collection by third-party agencies, incurred by PALM in enforcing the terms of this Agreement.
  17. Client Obligations. For the purposes of providing these services, Client agrees:
    • Cooperate with PALM in providing root access to servers, necessary assets or materials required by PALM to perform its obligations under this Agreement.
    • Authorize PALM use of all client logos, trademarks, website images, etc., for use in creating informational pages and any other uses as deemed necessary by PALM to fulfill on the services outlined in the Proposal, Order Form and/or this Agreement.
    • Review and approve pending content or respond to PALM’s written requests within 3-business days.
    • Upon request, share with PALM reports related to the performance of Services provided by PALM i.e. sales reports, Client inquiries, website traffic, etc.
    • Client will exercise diligence in abiding by the Production Schedule as established. Client will not hold PALM responsible for missing deadlines or scheduled deliverables due to incomplete or missing content or any other information to be provided by Client. PALM will notify Client in writing of all content, graphics or other information needed to proceed with development during the agreed upon Production Schedule. In the event any content, graphics or other information is not provided in accordance with the agreed upon Production Schedule, PALM shall reserve the right to adjust, extend or modify the original Production Schedule at PALM’s discretion and submit to Client a Production Schedule Modification document with associated fees, if any.
  18. Client Acknowledgements. Client understands, acknowledges and agrees that PALM has no control over the policies of search engines, advertising networks policies, social network policies, Internet service providers, media demands, etc. with respect to the type of websites and/or content that they accept now or in the future. Client acknowledges that PALM’s timely performance of its obligations under this Agreement is dependent, in part, on Client’s timely performance of Client’s obligations under this Agreement. In the event PALM is delayed in the performance of PALM’s obligations due to Client’s delay in performing its obligations, the additional PALM fees incurred as a result of Client’s delay, shall be paid by Client to PALM at the rates set forth in the Proposal Document. Setup or development fee(s) must be received prior to the commencement of the monthly services (if applicable).
  19. Client shall indemnify and hold harmless PALM (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by PALM as a result of any claim, judgment, or adjudication against PALM related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Client to PALM (the “Client Content”), or (b) a claim that PALM’s use of the Client Content infringes on the intellectual property rights of a third party. To qualify for such defense and payment, PALM must: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defense and all related negotiations.
  20. Right to Pull. By signing this Agreement, Client agrees to provide PALM “on demand” access to Client’s installed Project, and further agrees that PALM shall have the right to disable the Project for failure to adhere to the terms of this Agreement, including violation of any licensing agreements or failure to pay fees duly assessed.
  21. Disclaimer of All Other Warranties. PALM cannot warrant that the Services will meet the Client’s expectations or requirements. The entire risk as to the quality and performance is with Client. Except as otherwise specified in this agreement, PALM provides its Services “as is” and without warranty of any kind. The parties agree that (a) the limited warranties set forth in this section are the sole and exclusive warranties provided by each party, and (b) each party disclaims all other warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose, relating to this agreement, performance or inability to perform under this agreement, the content, and each party’s computing and distribution system. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
  22. Limited Liability. In no event shall PALM 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 under this agreement, loss of data, or any performance under this agreement, even if such party has been advised of the possibility of such damages and notwithstanding the failure of essential purpose of any limited remedy provided herein. There shall be no refunds. PALM 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.
  23. PALM may modify any of the terms and conditions contained in this Agreement, at any time, at its sole discretion. PALM must provide Client notice of such modifications. If any such modification is unacceptable, Client may terminate this Agreement. Client’s ongoing utilization of PALM’s services constitutes binding acceptance of such modifications
  24. Client Representations. Client makes the following representations and warranties for the benefit of PALM:
    • Client represents to PALM and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to PALM are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend PALM and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
    • Client guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to PALM for inclusion on the website above are owned by Client, or that Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend PALM and its subcontractors from any liability or suit arising from the use of such elements.
    • From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Client agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend PALM and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of Internet electronic commerce.
  25. The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, 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. 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, PALM and Client 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.
  26. Force Majeure. Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
  27. Relationship of Parties. PALM, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Client does not undertake by this Agreement, the proposal or otherwise to perform any obligation of PALM, whether by regulation or contract. In no way is PALM to be construed as the agent or to be acting as the agent of Client in any respect, any other provisions of this Agreement notwithstanding.
  28. Credit for Work. Unless otherwise expressly agreed upon in writing, PALM reserves the right to claim credit for all work performed by PALM, may at its own discretion place a “Credits” file within the Project, place a link to PALM’s website in the form of small type or a graphical logo within the Project and reference the Client Project or Services provided to Client in any of PALM’s promotional materials. PALM may, at its own discretion, elect to develop a client case study showcasing the work performed PALM for Client and Client grants PALM the rights to use Client’s logo and agrees to cooperate in the development of such case study which may involve a telephone interview, a personal interview, or written feedback.
  29. Non-Solicitation of Employees/Contractors. During the term of Client’s engagement with PALM, and for a period of one (1) year thereafter, Client shall not, directly or indirectly, without the prior written consent of PALM, solicit or induce any employee, consultant or contractor of PALM to leave the employ or service of PALM or hire, retain, employ, or engage for any purpose any employee, contractor or consultant of PALM; however, such covenant shall be subject to PALM remaining in operation for the restrictive period defined hereunder.
  30. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the addresses listed in the Order Form mailed by certified, registered or Express mail, return receipt requested or by Federal Express. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph. Any notice send via e-mail shall be deemed received when confirmed by the other party via e-mail.
  31. Jurisdiction/Disputes. This Agreement shall be governed in accordance with the laws of the State of Texas. Client and PALM 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 thirty (30) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be resolved by litigation in the courts of the State of Texas including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
  32. Agreement Binding On Successors. The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
  33. Client may not assign, transfer or sub-license this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of PALM. PALM reserves the right to assign subcontractors as needed to perform the duties in this Agreement and/or Statement of Work.
  34. No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
  35. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
  36. This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
  37. No Inference Against Author. No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
  38. Entire Agreement; Each party acknowledges that it has read the Agreement and the Exhibits attached thereto, and further agrees that the Agreement and the Exhibits thereto are the complete and exclusive statement of the parties and supersedes and merges all prior proposals understandings and agreements, oral or written, between the parties relating to the subject matter hereof, including without limitation, the terms of any Client request for proposal, the Engagement Letter or the standard printed terms on any Client purchase order. No modification, amendment, supplement to or waiver of this agreement or any exhibit hereunder shall be binding upon the parties hereto unless made in writing and duly signed by both parties.
  39. Miscellaneous. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with laws of the State of Texas without regard to the conflict of laws provisions thereof. Both parties agree this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Company does not have any authority of any kind to bind PALM in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
  40. Duly Authorized Representative. Each Party warrants that their representative whose signature appears below is duly authorized by all necessary and appropriate corporate actions to execute this Agreement.