Terms & Conditions

The following Terms and Conditions apply to all orders placed with Delmar by Client regardless if said Terms and Conditions are attached to subsequent orders. If any provision of this Agreement is held invalid, illegal, or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect if the essential provisions of this Agreement for each party remain valid, binding, and enforceable.

Confidentiality

Both Delmar and Client (referred to within this Agreement as “Party” or “Parties”) acknowledge that the knowledge and information of the other Party as related to that Party’s business and proprietary interests is highly confidential. Thus, each Party and its employees and agents agree not to disclose, during or after the term of this Agreement, any information relative or pertinent to the other Party’s financial condition, operating conditions, business operations and plans, or other information identified as proprietary. This obligation of confidentiality does not apply to information that: (a) is or becomes publicly available; (b) is already in the recipient’s possession prior to receipt; (c) is independently created by the recipient without resort to the information provided by the opposite Party; or (d) is received from a third party without an obligation of confidence. Client agrees any testimonial made on behalf of Delmar may be used, in whole or in part, in connection with publicizing and promoting Delmar. Client authorizes Delmar, without further consideration, to use Client’s name, brief biographical information, and non-proprietary project information for descriptive purposes. Client hereby irrevocably authorizes Delmar to copy, exhibit, publish, or distribute the descriptive information for purposes of publicizing Delmar's services or for any other lawful purpose. Client agrees that it will make no monetary or other claim against Delmar for the use of the descriptive information. Client statements may be used in printed publications, multimedia presentations, on Delmar’s website, or in any other distribution media.

Material and Workmanship

Delmar warrants and represents the Services (limited to and as identified within the Proposal) will be performed in a skillful and workmanlike manner according to those standards generally prevailing among consultants performing similar services under similar circumstances. To the extent that Delmar is not the manufacturer of any hardware or software products that Client may purchase as a result of or relating to Delmar’s Services, Delmar does not provide any warranty on such products, whether with respect to their design, performance, functionality or compatibility, with Client’s existing system. Any warranty with respect to product must come from the manufacturer or the product procurement distributor, and Delmar will pass through to Client any applicable warranties of the manufacturer, to the extent permissible. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, Delmar DISCLAIMS ALL WARRANTIES INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

ACCEPTANCE OF DELIVERABLES

If Client reasonably determines that the Deliverables (limited to and as identified within the Proposal) fail in any material respect to meet the mutually agreed specifications and/or other acceptance criteria, Client shall notify Delmar in writing of such failure and specify in reasonable detail the nature of such failure. Delmar shall make such revisions as necessary to cause such Deliverable to meet the specifications and/or other acceptance criteria, and re-submit such Deliverable to Client. At such time as a Deliverable meets such specifications and/or acceptance criteria, Client shall provide Delmar with written notice of such acceptance. In any case, each such Deliverable shall be deemed accepted unless rejected in writing within five (5) calendar days (or such other period set forth in the SOW) of the delivery by Delmar of such Deliverable. Notwithstanding the rejection of any Deliverable by Client, operational use of such deliverable shall be deemed to constitute acceptance thereof. Once accepted, Client may not thereafter reject any interim Deliverable, provided that acceptance of a composite Deliverable may be conditioned upon the appropriate integration and operation of such previously accepted interim Deliverable into such composite Deliverable, to the extent required by the applicable specifications or acceptance criteria.

Termination

If a failure to pay any charge when due, or any breach of any other material term of this Agreement, is not corrected within 30 days after written notice of such failure or breach, either party may terminate this Agreement. Rights or remedies provided in this Agreement are cumulative and in addition to, not in lieu of or as an alternative to, other rights and remedies allowed at law or in equity. Delmar reserves the right to stop the performance of Services (without a pause in the billing cycle) if Client payment is in arrears and may, at its sole discretion, add a reasonable remobilization fee onto the subsequent invoice.

Indemnification

Delmar will indemnify, defend, and hold Client harmless from and against any claims, liabilities, losses, expenses, or damages (collectively “Damages”) caused by the Services performed or the Deliverables delivered by Delmar under these terms infringing any copyright, trade secret or any other proprietary right of any third party. Excluded from such indemnification are any claims related to (i) services performed on equipment or software which Client covenanted Delmar had the rights to modify, (ii) services performed to Client specifications or design and, (iii) infringement resulting from or caused by Client’s misuse or unauthorized modification of systems or product. Delmar will also indemnify, defend, and hold Client harmless from and against any Damages resulting from Delmar’s willful misconduct or negligent acts or omissions in performing the services which are the subject of these terms, except to the extent such Damages are caused by the willful misconduct or negligence of Client. Delmar's obligation to indemnify and defend Client with respect to any claim shall be subject to (i) Client providing Delmar with prompt notice of such claim, (ii) Delmar having sole control over the defense and settlement thereof, (iii) Client providing Delmar with the information and assistance necessary to defend or settle such claim as reasonably requested by Delmar, and (iv) the limitations set forth hereafter. LIABILITY FOR LOSS: NEITHER PARTY IS RESPONSIBLE FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR SPECIAL DAMAGES INCLUDING LOSS OF PROFITS (OTHER THAN FEES DUE AND PAYABLE TO Delmar) DATA, BUSINESS OR GOODWILL ARISING UNDER ANY THEORY OF RECOVERY. TO THE EXTENT PERMISSIBLE BY LAW, THE MAXIMUM LIABILITY OF Delmar IN ALL REGARDS IS LIMITED TO FEES (EXCLUDING EXPENSES) PAID BY CLIENT FOR Delmar’S SERVICES WITH RESPECT TO THE RELEVANT SCOPE OF WORK DURING THE SIX MONTH PERIOD PRECEDING THE EVENT UPON WHICH LIABILITY IS PREDICATED. Client acknowledges this limitation of liability is part of the consideration and was considered by Delmar in establishing the prices and rates to be charged to Client, which, but for this limitation, would have been higher. Any claim relating to or arising out of any breach or alleged breach of this Agreement shall expire and shall be deemed to have been waived and released unless the aggrieved party shall have filed suit with respect to such claim in a court of competent jurisdiction within one (1) year following the date of the act or omission constituting such breach, irrespective of the date of discovery of such breach by the aggrieved party. THE PARTIES EXPRESSLY INTEND AND AGREE THAT THE FOREGOING LIMITATIONS PERIOD SHALL SUPERSEDE ANY STATUTE OF LIMITATIONS OR OTHER LIMITATION PERIOD THAT WOULD OTHERWISE APPLY TO SUCH CLAIM UNDER ANY STATUTE, REGULATION OR RULE OF LAW.

Force Majeure

Delmar shall not be liable in any way for any delay in performance, or for any loss or damage due to any of the following: fires; strikes; labor disputes; embargoes; explosions; power failures or surges; wars; acts of civil or military authorities; acts stemming from governmental requirements, regulations or priorities; acts of nature; acts of public enemies; inability to secure materials, products, or transportation; acts or omissions of a carrier; or failures, events or conditions beyond Delmar's reasonable control, regardless of whether similar to any of the foregoing. Delmar shall be liable for any delays, losses, damages or product failures attributable to any service, product, or action of any person other than Delmar's affiliates, their employees, or agents.

RIGHTS IN DELIVERABLES/ACCESS

Delmar hereby assigns to Client a perpetual, worldwide, non-exclusive license to use all materials supplied by Delmar for Client hereunder and required to be delivered to Client by virtue of their description or specification as a deliverable in the SOW (Deliverables) upon payment in full of all applicable invoices. As consideration for the significantly discounted rate extended to Client, Client agrees Delmar may also utilize the Deliverables (including advertising, marketing materials, campaigns, social media success and/or the results of those campaigns) in any manner it so chooses regardless of any work product and/or confidentiality provision to the contrary. Deliverables exclude Delmar’s proprietary tools, methodologies, and any enhancements made to such tools and methodologies (“Delmar Materials”) which shall remain the sole property of Delmar, and exclude any third party components whether or not included or embedded therein. Within the definition of Delmar Materials is a knowledgebase/customer portal. Client shall have access to the content of the knowledgebase/customer portal during the period of Client’s Growth Accelerator Agreement. This access is limited to Client only and shall not be shared beyond Client personnel. Should Client’s Growth Accelerator Agreement expire or be invalidated for any reason, Client shall no longer have access to the knowledgebase/customer portal. Delmar grants to Client a perpetual, worldwide, non-exclusive, paid-up, limited license to use the Delmar Materials as incorporated in the Deliverables for Client’s internal business purposes, provided that Client will have no right to use such Delmar Materials apart from the Deliverables or in any other manner. Notwithstanding anything to the contrary, Delmar retains all rights to its knowledge, experience and know-how (including processes, ideas, concepts and techniques) acquired in the course of performing the Services.

Content Usage and Liability Release

By submitting photos, graphics, and videos ("Content") to Delmar  you grant Delmar and its affiliates a non-exclusive, royalty-free, worldwide license to use, reproduce, modify, adapt, publish, distribute, and display the Content in any marketing materials or services provided by Client. You affirm that you own or have obtained all necessary rights, permissions, and licenses to the Content and that the use of the Content as specified herein does not and will not infringe on any copyrights, trademarks, or other proprietary rights of third parties, nor violate any individual’s right to privacy, publicity, or any other rights. You agree to release and hold harmless Delmar, its employees, agents, and representatives from any claims, damages, or liabilities arising from or related to the use of the Content provided.

Amendments, Waiver, Variances and Headings

Any amendments, modifications or supplements to this Agreement (including any changes to the SOW) must be in writing and signed by an authorized representative of each party. In the event of changes in the SOW or other terms, the parties will work together in good faith to agree upon an appropriate change order to the existing project scope of services, including any additional fees if applicable. Delmar shall have no obligation to perform additional services nor shall Client have an obligation to pay additional fees absent agreement on a Change Order. Failure to enforce or insist upon compliance with any term of this Agreement shall not constitute a waiver or relinquishment of any such term, but the same shall remain at all times in full force and effect. Variances from the terms and conditions of this Agreement on any Client order will be of no affect and this Agreement expressly limits acceptance to the terms hereof.

Notices

Any notice in connection with this Agreement shall be in writing and shall be deemed effective when delivered by hand or upon receipt when mailed by registered or certified mail (return receipt requested), postage prepaid. Notices should be sent to the following:

Delmar:
Attention To: Chris Dellen
4253 East 500 South
Middletown, IN 47356

Entire and Complete Terms

This Agreement contains the understanding of the Parties hereto with respect to the subject matter contained herein and may be amended only by a written instrument executed by each of the Parties or their respective personal representatives, successors, and/or assigns. This Agreement supersedes any and all prior agreements with respect to the subject matter hereof, and there are no restrictions, promises, warranties, covenants, or undertakings between the Parties other than those expressly set forth in this Agreement. Should the Parties supplement this Agreement (Project Scope documents), the terms herein shall take precedence should there be any conflict.

Severability

If any application or term of this Agreement is held to be unenforceable or invalid for any reason, the validity of all the remaining applications and terms shall not be affected, and, if generally consistent with the basic purpose of this Agreement, the rights or obligations of each of the Parties shall be construed and enforced as if the contract did not contain such invalidity. Each Party has had the benefit and advice of independent legal counsel in connection with the subject matter of this Agreement in connection with the execution, delivery, and performance of this Agreement. Therefore, neither party to this Agreement will be considered the exclusive drafter of the Agreement.

This Agreement shall be deemed to have been entered into in the State of Indiana, and all questions concerning the validity, interpretation, or performance of any its terms or provisions, or of any rights or obligations of the parties hereof, shall be governed by and resolved in accordance with the internal laws of the State of Indiana. Unless the Parties to this Agreement mutually agree in writing, all claims and disputes arising in connection with the making of and entering into or performance of the Agreement will be finally settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date of this Agreement as a single arbitrator appointed in accordance with such rules. The cost of the arbitrator and the cost of both parties of proceeding in arbitration, including, without limitation, reasonable attorney fees and expenses, will be borne as to each claim submitted to arbitration by the substantially non-prevailing party on that claim. The award of the arbitrator will be in writing and will contain findings of fact and conclusions concerning applicable law. Judgment upon the award rendered by the arbitrator may be entered in any court having proper jurisdiction. Should any litigation be commenced between the Parties to this Agreement, or the rights and duties of either Party in relation thereto, the Party prevailing in such litigation shall be entitled, in addition to such other relief that may be granted, to a reasonable sum for its attorney fees, court costs, and other reasonable litigation fees in such litigation which shall be determined by the court in such litigation or in a separate action brought for that purpose.

Non-Solicitation

For the term of this Agreement and for a period of one year thereafter, Client hereby agrees not to hire, solicit, or accept solicitation of, through employment or otherwise, directly or indirectly, any of Delmar’s employees. If such action occurs and results in a Delmar employee accepting employment with the Client, Client hereby agrees to pay to Delmar, as liquidated damages, that individual’s Delmar annual compensation to offset such recruiting and training costs.