RECITALS
A. Coffee Prophets is in the business of assisting entrepreneurs at every stage of development in the specialty coffee and food services industries improve performance, increase sales and reduce costs through consulting, training and education, branding and marketing, and sourcing.
B. Client desires to retain Coffee Prophets to provide such services in accordance with the terms and conditions of this Agreement.
AGREEMENT
In consideration of the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Coffee Prophets and Client agree as follows(Note* All Coffee Prophet Design and Consulting Fees are based upon $125.00 US Dollars per Hour.  All design and consulting work performed exceeding Internet Web Price devided by the number of design or consulting hours performed at an hourly rate of $125.00 US dollars per hour are subject to additional fees based upon the actaul hours required to complete the scope of work at the said $125.00 US dollars per hour rate. Actaul design and consulting logs supercede proposals and scope of work agreements based on those instruments serve only guideleines and can not address unforeseen conditions to include but not limited to site or enviromental conditions, asbestos removal, client demeanor,lack of responsiveness, clients constant changes, modifications or or unreasonable  requests as soley deemed by Coffee Prophets alone).  Coffee Prophets will advise client in writing of additonal fees that will be incurred at standard rate to complete a designated scope of work.  Client must provide written approval of number of additional hours authorized prior to Coffee Prophets continuance of service on said scope along with payment of those hours in advance.

1. Services.
1.1 Coffee Prophets shall perform for Client the services (the “Services”) checked on the following Statement of Work (the “SOW”):
Check all that are applicable:
A. Consulting Services.
Start-up Consultation. Up to two (2) hours of telephone consultations to discuss the many facets and daily operations of owning a specialty coffee retailing business.
Business Plan Development. Development of the Client’s business plan, including mission statement, type of business, customer satisfaction, philosophy, value-based marketing, keys to success, and what makes the Client different.
Financial Evaluation and Loan Assistance. Financial analysis of each component of opening a business, including critical information to understand Client’s financial position, including estimated cost of market entry, break-even analysis, cost of goods based upon proposed menus, profit and loss statements and financial forecasts.
Site Selection Assistance. Assistance in selection of an “ideal” retail location using a “weighting scale” of over 100 criteria for selecting a viable location for Client’s retail business. Master Services Agreement – Coffee Prophets Page 2 of 59
Tenant Lease Recommendations and Review. Complete analytical review of Client’s proposed lease, including suggestions on how to best capitalize on tenant improvements, common area maintenance charges and other valuable options that will assist the Client in negotiations with the landlord.
B. Training & Education.
Coffee Clinic. “Hands on” training in the art of espresso extraction, milk texturing and drink building, along with basic latte art techniques with the intent of setting Client apart from other retailers.
Store Setup and Pre-opening Employee Training. Complete store setup and pre-opening employee training, including beverage preparation, customer service, safety, cleaning, and opening and closing procedures.
Leadership and Management Training. Two (2) day workshop to develop, foster and energize the teams that are responsible for making Client’s establishment successful.
C. Branding and Marketing.
Logo Design and Development (Build Your Own Brand). Creation of a logo that captures the essence of Client’s vision, brand identity and dream, which is powerful and clearly positions itself to gain awareness of those who see it. Logo Design and Development is intended to seamlessly integrate with Coffee Prophet’s Sign Language offer to produce high quality indoor and outdoor signage at reasonable prices.
Licensing of Existing Brand. License by Client of one of Coffee Prophets’ existing coffee brands:
Tamping Grounds™
Taza’s Coffee™
Joe Mama’s™
If checked, Client and Coffee Prophets will enter into a Brand and Trade Name License Agreement in the form of Exhibit B to this Agreement.
Brand Identity and Marketing. Design of a direct mail postcard and other marketing materials to Client’s specifications, including mailing software that identifies Client’s target populations with pinpoint accuracy, and poster and banner templates to create a strong marketing campaign.
Website Development. Creation of a distinctive website for Client’s operations, giving Client’s current and prospective customers round-the-clock access to information and resources. If checked, Client and Coffee Prophets will enter into a Website Design Agreement in the form of Exhibit E to this Agreement.
Quintessential Marketing. Coffee Prophets’ unique method of “Experiential Branding” allows Client to brand the essence of the business in the mind of its customers through strategic use of design and mailer services, design and layout of the coffee house, and design of Client’s logo and website. Master Services Agreement – Coffee Prophets Page 3 of 59
D. Sourcing.
Custom Millwork. Design and manufacture of custom millwork specifically designed for Client’s coffee house. If checked, Client and Coffee Prophets will enter into a Design/Build Agreement for the custom millwork in the form of Exhibit C to this Agreement.
Point of Sale Solution. Design of a highly efficient point of sale system that is easy to use, reliable, maintains a comprehensive support system, and can withstand the fast-paced environment of a bustling coffee house. If checked, Client and Coffee Prophets will enter into a Point of Sale Purchase Agreement in the form of Exhibit D to this Agreement.
Sign Solutions. Design and manufacture of Client’s signage, including complete installation instructions, transformers and wiring, taking into account applicable city code and ordinance laws and lease sign specifications. If checked, Client and Coffee Prophets will enter into a Signage Purchase Agreement in the form of Exhibit F to this Agreement.
1.2 The scope of Services, and associated fees and rates set forth in this Agreement shall not be modified unless in accordance with this Section 1.2. If changes to the scope of Services, the schedule for deliverables, price, other modifications, and/or new SOWs (hereinafter collectively “Changes”) may be necessary or desirable from time to time. Either party may initiate a written request for Change on Coffee Prophets’ form of Master Change Order attached hereto as Exhibit A. Changes authorized in writing and signed by both parties shall amend this Agreement.
1.3 The Services may involve hosting Internet sites on the World Wide Web accessible by users of Client, as more fully described in the SOW. Client shall provide a user agreement and privacy statement for use on the Client websites, to be available to each user upon access to the applicable sections of the Client websites.
2. Ancillary Agreements. As part of the Services, Coffee Prophets may: (i) grant a license to use certain trademarks, trade names, service marks, symbols and other intellectual property pursuant to the terms of a Brand and Trade Name License Agreement in substantially the form of Exhibit B attached hereto and incorporated herein by reference; (ii) provide millwork design/build services for Client’s business pursuant to the terms of a Design/Build Agreement in substantially the form of Exhibit C attached hereto and incorporated herein by reference; (iii) provide point-of-sale systems pursuant to the terms of a Point of Sale Purchase Agreement in substantially the form of Exhibit D attached hereto and incorporated herein by reference; (iv) provide website design services pursuant to the terms of a Website Design Agreement in substantially the form of Exhibit E attached hereto and incorporated herein by reference; and/or (v) provide signage for Client’s business location pursuant to the terms of a Signage Purchase Agreement in substantially the form of Exhibit F attached hereto and incorporated herein by reference, any of which will be executed simultaneously with the execution of this Agreement as applicable.
3. Charges and Payments.
3.1 Rates and Expenses. Client shall pay Coffee Prophets for Services in accordance with the rates set forth in Schedule 1. Coffee Prophets reserves the right to charge additional fees for any Master Services Agreement – Coffee Prophets Page 4 of 59
Services provided that are not included on the SOW, provided that such fees are approved by Client in writing under Section 1.2 of this Agreement prior to performance of the additional Services. Client will reimburse Coffee Prophets for all reasonable out-of-pocket expenses incurred in connection with the provision of the Services and deliverables under this Agreement. All expenses over $1,000 shall be pre-approved by Client.
3.2 Invoice and Payment. Payment for all undisputed charges shall be made in accordance with the rates set forth in Schedule 1. Except as otherwise provided herein, all undisputed fees, including any applicable sales taxes, other taxes, or pass-through charges due hereunder are payable within thirty (30) days of the applicable invoice date. In the event that undisputed payments have not been made within such thirty (30) day period, Coffee Prophets may send notice of a delinquency to Client. Ten (10) days following the date of such delinquency notice, if such delinquency is not cured, Coffee Prophets may suspend provision of all Services hereunder without liability. In any collection efforts for undisputed fees, Client shall be responsible for paying all costs, including reasonable attorneys’ fees. Client agrees to review Coffee Prophets invoices and to notify in writing Coffee Prophets within ten (10) days of the invoice date if any charges are disputed. Such notice must state the reasons for or the questions about each disputed item. Any charges not disputed within such ten (10) day period are deemed undisputed. The parties agree to meet promptly (in no event to exceed ten (10) days) after Client’s notice in order to resolve the disputed charges. In the event that the parties are unable to resolve the disputed items within ten (10) days of such meeting, the parties agree that the dispute shall be settled by binding arbitration administered in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be heard and determined by one arbitrator selected in accordance with such Commercial Arbitration Rules, and such arbitrator shall be an attorney having experience and familiarity with marketing and licensing, unless the participation of such an attorney is not reasonably practicable.
4. Proprietary Rights.
4.1 Intellectual Property Rights. For purposes of this Agreement, the term “Intellectual Property Rights” means any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (a) rights associated with works of authorship throughout the world, including, but not limited to, copyrights (including, without limitation, the sole and exclusive right to prepare derivative works of the copyrighted work), moral rights, and mask-works, (b) trademarks, service marks, trade names, goodwill, trade dress, rights in packaging, merchandising rights, advertising rights and other commercial rights, and all rights associated therewith, (c) trade secret rights, (d) patent rights, (e) rights of privacy and rights of publicity, (f) all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the world and however designated) whether or not analogous to any of the foregoing rights (including, without limitation, logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license or otherwise, and (g) all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force throughout the universe (including, without limitation, rights in any of the foregoing), whether now known or which subsequently come into existence.
4.2 Coffee Prophets Property. Coffee Prophets has created, acquired or otherwise has rights in, and may, in connection with the performance of Services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in, various concepts, ideas, methods, methodologies, procedures, processes, know-how and techniques; models (including, without limitation, function, process, system and data models); templates, the generalized features of the structure, sequence and organization of Master Services Agreement – Coffee Prophets Page 5 of 59
software, user interfaces and screen designs; general purpose consulting and software tools, utilities and routines; and logic, coherence and methods of operation of systems, and all associated Intellectual Property Rights (collectively, the “Coffee Prophets Property”). To the extent that Coffee Prophets utilizes any Coffee Prophets Property in connection with the performance of Services and grant of license hereunder, such property shall remain the property of Coffee Prophets and, except for the limited license expressly granted herein, Client shall acquire no right or interest in such property. Notwithstanding anything in this Agreement to the contrary, the parties acknowledge and agree that Coffee Prophets will own all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to the Coffee Prophets Property. All rights not expressly granted are reserved to Coffee Prophets.
4.3 Client Property. “Client Property” shall mean (a) various concepts, ideas, methods, methodologies, procedures, processes, know-how and techniques; models (including, without limitation, function, process, system and data models); templates; user interfaces and screen designs, and all associated Intellectual Property Rights and Confidential Information therein that Client has created, acquired or otherwise has rights in, and may, in connection with Coffee Prophets’ performance of Services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in; (b) all Deliverables (as further defined and described in Section 4.4); (c) all User Data (as further defined in Section 4.5) supplied, generated, collected and/or stored in connection with the Services under this Agreement; (d) all Client Content (as defined and described in Section 7.1 of this Agreement); (e) all URLs and domain names used solely for the benefit of Client in connection with the Services or the Deliverables; and (f) all Intellectual Property Rights and Confidential Information in all of the foregoing. Client is the sole and exclusive owner of all Client Property. Notwithstanding the foregoing, Client Property shall not be deemed to include, and Client shall not obtain any ownership rights in, any of the Coffee Prophets Property, even if such Coffee Prophets Property is used in connection with or for the creation of the Deliverables. Subject to licenses granted in connection with User Data in Section 4.5 herein, Client hereby grants to Coffee Prophets a worldwide, non-exclusive, royalty-free, non-transferable, non-sublicensable, license to use Client Property or other materials that are reasonably needed by Coffee Prophets solely in order to perform the Services for Client, and for no other purposes whatsoever. To the extent that Coffee Prophets utilizes any Client Property or other materials (including, without limitation, any hardware or software of Client) in connection with the performance of the Services hereunder, such Client Property and/or materials shall remain the sole and exclusive property of Client and, except for the license expressly granted herein, Coffee Prophets shall acquire no right or interest in such property. All rights not expressly granted are reserved to Client.
4.4 Ownership of Deliverables. The tangible and intangible items developed, performed, created or otherwise specified as Client deliverables in connection with the provision of Services under this Agreement, as specifically identified in the SOW as a Client “deliverable” (the “Deliverables”), will become the property of Client. To the extent that any Coffee Prophets Property is contained in any of the Deliverables, Client shall not obtain any ownership rights or interest in such Coffee Prophets Property provided. Coffee Prophets hereby grants Client a royalty-free, worldwide, fully paid-up, non-exclusive license to use such Coffee Prophets Property in connection with the Deliverables. Client shall own the exclusive rights, title and interest in and to all Intellectual Property Rights in all Deliverables. Therefore, all Deliverables shall become and remain Client’s exclusive property and, unless otherwise specifically agreed in writing by the parties, shall be considered specially ordered for Client as “works made for hire” by an independent contractor under the United States Copyright Laws (17 U.S.C. Section 101, and any amendments thereto.) If for any reason the Deliverables are held not to be “work made for hire,” Coffee Prophets hereby assigns all its right, title and interest in the Deliverables to Client. Any Master Services Agreement – Coffee Prophets Page 6 of 59
assignment of copyright hereunder includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights” (“Moral Rights”). To the extent such Moral Rights cannot be assigned under applicable law and to the extent allowed by law, Coffee Prophets hereby waives such Moral Rights in favor of Client and consents to any action of Client that would violate such Moral Rights in the absence of such consent. As to all Intellectual Property rights that are not rights of copyright, Coffee Prophets hereby irrevocably assigns all of its right, title and interest in and to all Deliverables and all other Intellectual Property Rights therein to Client. Without limiting the generality of the foregoing, Client’s rights in the Deliverables shall include, but shall not be limited to: the unrestricted and exclusive right to reproduce, use, display or perform the Deliverables throughout the world without name credit, for advertising, trade or any other lawful purpose, in and through all media now known or later created or invented; the exclusive right throughout the world to protect the Deliverables by copyright(s), patent(s) or trademark(s) in Client’s name and for the benefit of Client and its affiliates, including the right to secure extensions and renewals of such copyright(s), patent(s) or trademark(s) in Client’s name and for Client’s benefit; the right to create derivative works from and to alter, retouch or crop the Deliverables in any way; and the right to license, distribute, assign or transfer any right, title, interest or intellectual property in the Deliverables or otherwise dispose of the Deliverables or any portion thereof for any purpose and in any manner. Solely for the purpose of securing payment for Deliverables, Client hereby grants to Coffee Prophets an unconditional first lien and security interest in and to all Deliverables as defined above. Client agrees that none of the foregoing shall be subjected to a superior lien or interest, shall not be subordinated to any other lien or interest. Client agrees that Coffee Prophets may file UCC-1 financing statements or similar documents to perfect its security interest, and further agrees to execute all documents necessary to assist Coffee Prophets in the perfection of its first priority security interest and to execute all document reasonable necessary for these purposes. Coffee Prophets agrees to release the aforesaid security interest in and to all Deliverables for which Client has paid in full, and further agrees to execute all documents necessary to assist Client in the clearing the security interest and to execute all document reasonable necessary for these purposes.
5. Confidentiality.
5.1 Obligation. With respect to the Confidential Information (as defined below) disclosed by a party (the “Disclosing Party”) to the receiving party (the “Receiving Party”), the Receiving Party agrees that it shall: (i) take reasonable steps to safeguard the Confidential Information from unauthorized access or use by others; (ii) not disclose the Confidential Information to any third party (including consultants and subcontractors) except on a need-to-know basis in connection with the transactions contemplated by this Agreement and then only if the third party is subject to a written confidentiality agreement; and (iii) not use the Confidential Information for any purpose not related to this Agreement or to the detriment of the Disclosing Party. Notwithstanding the above, the parties agree that, whether or not Intellectual Property Rights of the parties is disclosed in confidence, the Intellectual Property Rights of the parties shall remain in effect in accordance with the laws applicable to the Intellectual Property Rights in question. “Confidential Information” means all User Data, and all trade secret, confidential or proprietary knowledge, data and information, including information related to the business, customers and products of a Disclosing Party, specifications, know-how, drawings, sketches, models, samples, reports, plans, forecasts, current and historical data, computer programs, documentation, market research, market plans, business plans, Intellectual Property, and other technical, financial or business data in the possession of a Disclosing Party that such Disclosing Party desires to protect against unrestricted disclosure or competitive use, and includes the terms of this Agreement. Master Services Agreement – Coffee Prophets Page 7 of 59
5.2 Exceptions. The obligations imposed hereunder shall not apply to specific information, whether or not designated Confidential Information, if: (i) the information is part of the public domain, or becomes part of the public domain through no fault of the Receiving Party; (ii) the information is received from a third party without a restriction of confidentiality, without a breach of this Agreement, and without a breach of another agreement of confidentiality by the third party; (iii) the information is independently developed by the Receiving Party through individuals not exposed to the Confidential Information and without any reference to it, as evidenced by the Receiving Party’s written records; or (iv) the information is Aggregated User Data as defined in Section 4.5 of this Agreement. Neither party shall disclose to the other party any Confidential Information obtained by such party from a third party on a confidential basis unless such party has obtained written permission from such third party to do so. Evidence of such written permission shall be provided to the requesting party upon request.
6. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE). COFFEE PROPHETS’ AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED AN AMOUNT EQUAL TO ALL THE FEES, EXPENSES AND/OR OTHER CHARGES PAID TO COFFEE PROPHETS BY CLIENT FROM THE INCEPTION OF THIS AGREEMENT.
7. Representations and Warranties.
7.1 By Client.
7.1.1 Client hereby represents and warrants that any content owned or licensed by Client from third parties, including, but not limited to, all text, pictures, audio, video, logos and copy contained therein, data, email addresses, and other information (“Content”) posted on any Client Site, or otherwise provided to Coffee Prophets by Client hereunder (including, without limitation any Client Property) or acquired or created by Coffee Prophets at Client’s request, including the transmission of such Content through email, for use under this Agreement will not: (i) infringe any third party’s valid Intellectual Property Rights; (ii) knowingly violate any law or regulation (including, without limitation, any law or regulation governing data collection, spam, maintenance or privacy); (iii) be defamatory; (iv) be obscene or contain pornographic material of any kind; (v) contain material that is grossly offensive to the online community, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity; (vi) display material that exploits children under eighteen (18) years of age; (vii) promote or provide instructional information about illegal activities, or promote physical harm or injury against any group or individual; or (viii) intentionally contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
7.1.2 Client further represents and warrants to Coffee Prophets that: (a) Client is free to enter into and to perform this Agreement, and that the performance of all the terms of this Agreement will not breach any confidential information agreement, non-competition agreement or other agreement with any third party; and (b) Client’s use of the Services shall be in compliance with all applicable laws, rules and regulations. Master Services Agreement – Coffee Prophets Page 8 of 59
7.1.3 In no event shall Coffee Prophets be liable to Client for any costs, liabilities or damages resulting from incorrect, incomplete or inaccurate measurements, specifications or other information provided to Coffee Prophets, and Owner shall bear all costs and expenses relating to any such errors.
7.2 By Coffee Prophets.
7.2.1 Coffee Prophets hereby represents and warrants that the Coffee Prophets Property it uses to provide the Services: (i) will not infringe any third-party Intellectual Property Rights arising under the laws of the United States, or any other country or territory where Coffee Prophets provides the Services or Deliverables to Client; (ii) will not violate any law or regulation (including, without limitation, any law or regulation governing data collection, maintenance or privacy); and (iii) will not intentionally contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
7.2.2 Coffee Prophets further represents and warrants to Client that: (a) Coffee Prophets is free to enter into and to perform this Agreement, and that the performance of all the terms of this Agreement for Client will not breach any confidential information agreement, non-competition agreement or other agreement with any former or current consumer of Coffee Prophets’ services; (b) all Services and Deliverables furnished to Client shall be in compliance with all applicable laws, rules and regulations; and (c) all software will perform substantially in accordance with written specifications and documentation.
7.3 Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, COFFEE PROPHETS DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY.
7.4 Warranty Waiver. COFFEE PROPHETS, NOT BEING THE MANUFACTURER OF THE EQUIPMENT OR SUPPLIES NOR THE MANUFACTURER’S/SUPPLIER’S AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE EQUIPMENT OR SUPPLIES, INCLUDING BUT NOT LIMITED TO: THE MERCHANTABILITY OF THE EQUIPMENT OR SUPPLIES OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE; THE DESIGN OR CONDITION OF THE EQUIPMENT OR SUPPLIES; THE QUALITY OR CAPACITY OF THE EQUIPMENT OR SUPPLIES; THE WORKMANSHIP IN THE EQUIPMENT OR SUPPLIES; COMPLIANCE OF THE EQUIPMENT OR SUPPLIES WITH THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATIONS OR CONTRACT PERTAINING THERETO; PATENT INFRINGEMENT; OR LATENT DEFECTS.
7.4.1 Coffee Prophets hereby assigns to Client all of its rights and interests in the warranties, if any, provided by the manufacturers/suppliers of the equipment or supplies , to the extent that this assignment is not prohibited by the terms of any agreement between Coffee Prophets and the manufacturers/suppliers.
7.4.2 Coffee Prophets shall not be liable or responsible to Client for any damage, defect, failure to meet specifications, late delivery, failure to deliver or shortage in respect to any item purchased hereunder, or for failure of the manufacturer/supplier to properly install or assemble any item, or for the failure of the manufacturer/supplier thereof for any reason whatsoever to comply with the Master Services Agreement – Coffee Prophets Page 9 of 59
terms of the purchase order or for the failure of the equipment or supplies to operate as represented or warranted by the manufacturer/supplier, or if the equipment or supplies are unsatisfactory for any reason. Coffee Prophets shall not be liable or responsible to Client for any claim, loss, damage, liability or expense of any kind or nature caused, directly or indirectly, by the equipment or supplies or any part thereof, or the inadequacy thereof for any purpose, or any defect or deficiency therein, or the use, operation or storage thereof, or the interruption or loss of the service or use thereof, or arising from any other reason or cause whatsoever relating to or concerning the equipment or supplies, or any part thereof.
7.4.3 Client shall be subrogated to Coffee Prophet’s claims, if any, against the manufacturer/supplier of the equipment or supplies for breach of any warranty or representation and, upon written request from Client, Coffee Prophets shall take all reasonable action requested by Client to enforce any such warranty, express or implied, issued on or applicable to any of the equipment, which is enforceable by Coffee Prophets in its own name, provided, however, that (a) Client is not in default under this Agreement or any agreement contemplated or required hereby, and (b) Coffee Prophets shall not be obligated to resort to litigation to enforce any such warranty unless Client shall pay all expenses in connection therewith. Notwithstanding the foregoing, Client’s obligations to pay the purchase price or otherwise under this Agreement shall be and are absolute and unconditional. All proceeds of any such warranty recovery from the manufacturer/supplier of the equipment or supplies shall first be used to repair the affected equipment or supplies.
8. Indemnification.
8.1 General. EACH PARTY SHALL INDEMNIFY, DEFEND, AND HOLD THE OTHER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES, DEMANDS, DAMAGES AND COSTS (INCLUDING, WITHOUT LIMITATION, SETTLEMENT COSTS, JUDGMENTS, AND THE REASONABLE FEES OF ATTORNEYS’ AND OTHER PROFESSIONALS) ARISING FROM ANY CLAIM ALLEGING FACTS THAT WOULD CONSTITUTE A BREACH OF SUCH PARTY’S REPRESENTATIONS OR WARRANTIES UNDER SECTION 7.
8.2 Indemnification by Coffee Prophets. Coffee Prophets shall indemnify, defend, and hold Client harmless from and against any and all claims, losses, liabilities, demands, damages and costs (including, without limitation, settlement costs, judgments and the reasonable fees of attorneys and other professionals) arising from any claim alleging that the Services or any Deliverables furnished under this Agreement infringe or misappropriate any Intellectual Property Right of a third party arising under the laws of the United States or any other country or territory where Coffee Prophets provides Services or Deliverables to Client (an “Infringement Claim”), or any claim that Coffee Prophets has used User Data outside the scope of this Agreement, except where the claim or suit arises out of or results from: (A) any enhancements to the Coffee Prophets products, Services or Deliverables made in accordance with specifications received solely from Client, (B) Client’s use of the Coffee Prophets Services or Deliverables other than the most recent version of the Coffee Prophets Services or Deliverables, if such infringement or misappropriation would have been avoided by the use of the most recent version of the Services or Deliverables; (C) modification of the Coffee Prophets Services or Deliverables by any party other than Client, Coffee Prophets, its subcontractors or agents; (D) the use of the Coffee Prophets Services or Deliverables other than in accordance with this Agreement, or (E) Client Content. In the event of any Infringement Claim, Coffee Prophets will, at its sole expense and to the extent commercially reasonable: (i) obtain for Client the right to use the infringing Service or Deliverables; (ii) Master Services Agreement – Coffee Prophets Page 10 of 59
modify such Service or Deliverables in a manner that maintains existing functionality and does not give rise to an infringement claim; or (iii) substitute equivalent, non-infringing Services or Deliverables that are reasonably equivalent to the infringing Service or Deliverables.
8.3 Indemnification by Client. CLIENT SHALL INDEMNIFY, DEFEND AND HOLD COFFEE PROPHETS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES, DEMANDS, DAMAGES, AND COSTS (INCLUDING, WITHOUT LIMITATION, SETTLEMENT COSTS, JUDGMENTS AND THE REASONABLE FEES OF ATTORNEYS AND OTHER PROFESSIONALS) ARISING OUT OF (I) ANY USE OF OR ACCESS TO THE CLIENT SITES BY CLIENT OR BY AN AUTHORIZED AGENT OF CLIENT; (II) ANY CLIENT CONTENT DISPLAYED IN EMAIL SENT BY COFFEE PROPHETS ON BEHALF OF CLIENT OR AVAILABLE THROUGH THE CLIENT SITES, OR (III) ANY USE OF CLIENT PROPERTY BY COFFEE PROPHETS PERMITTED UNDER THIS AGREEMENT; (IV) THE PROVISION OF ANY GOODS OR SERVICES THROUGH THE CLIENT SITES OR ANY CLAIM THAT SUCH GOODS OR SERVICES CONSTITUTE INFRINGEMENT OR MISAPPROPRIATION OF ANY VALID THIRD-PARTY INTELLECTUAL PROPERTY RIGHT; AND (V) ANY OF THE EXCEPTIONS IN THE PRECEDING PARAGRAPH LISTED IN CLAUSES (A) THROUGH (E).