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Additional Terms of Service for Professional Services

Additional Terms of Service for Professional Services

These Additional Terms and Conditions for Professional Services (these “Additional TOS”) supplement the Newtek Technology Solutions, LLC’s (“NTS”) Term of Service (the “Base TOS”) and, together with the Base TOS, govern your use of the NTS Professional Services (defined below”). Your use of the NTS Professional Services is subject at all times to the Base TOS and these Additional TOS, as well as any other terms and conditions that may apply to the services you acquire from or through NTS, including without limitation any third party terms and conditions, terms of service, licensing agreements or the like that may apply to your procurement of the NTS Professional Services. The term “NTS Professional Service” means any professional services offered by NTS, whether provided by NTS directly or by a third party provider through NTS, including without limitation, implementation services, managed services, search engine optimization services and design and development services. Capitalized terms used, but not otherwise defined herein, have the respective meanings assigned to them in the Base TOS unless the context clearly defines otherwise, and the term NTS Services as used in the Base TOS shall include without limitation the NTS Professional Services. For the avoidance of doubt, “you” as used herein has the same meaning given to it in the Base Agreement, and includes without limitation the individual person who actually agrees to be bound by these Additional Terms and, if applicable, the entity on whose behalf such person is agreeing to be bound by these Additional TOS. References to “this Agreement” in the Base TOS shall refer to the Base TOS as supplemented/modified by these Additional TOS.

By clicking that you “agree to” or “accept” (or similar) these Additional TOS and/or purchasing (including through a reseller) and/or using the NTS Professional Services, you acknowledge that you have read and understood these Additional TOS and the Base TOS, and that you agree to be bound by all terms and conditions set forth in these Additional TOS and the Base TOS, and any other policies or agreements made part of either of them by reference, as well as any new, different or additional terms, modifications, conditions or policies which NTS or any of its third party providers may establish and/or revise at any time, and any agreements that NTS is currently bound by or will be bound by in the future.

The terms contained in these Additional TOS and the Base TOS supersede and replace any other agreement or negotiation between you and NTS whether oral, written, or otherwise including any statements made by any representative of NTS, at any time, with respect to the matters covered by the Base TOS and these Additional TOS.

You agree that NTS may modify These Additional TOS from time to time. You agree to be bound by any changes NTS may make to this these Additional Terms as of the date on which such changes are made effective. You agree that NTS shall not be bound by any representations made by third parties who you may use to purchase the NTS Professional Services, including any reseller.

You warrant in your personal capacity that you have the power, authority, and capacity necessary to undertake the obligations set forth herein for yourself and, if applicable, on behalf of any entity on whose behalf you are agreeing to be bound by these Additional TOS.

Scope of Professional Services: The scope of any NTS Professional Services to be delivered by NTS shall be set forth in one or more separate written agreement(s) between you and NTS with respect thereto (an “NTS Professional Services Agreement”) or if there is no such agreement covering the applicable NTS Professional Services, then as quoted to you by NTS (an “NTS Quote”). The scope of any NTS Professional Services shall be limited to those set forth in the applicable NTS Professional Services Agreement or Quote, and shall be construed narrowly.

Pricing/Payment Terms: The price for any NTS Professional Service and the payment terms therefor shall be as follows: (1) if the NTS Professional Services are being delivered pursuant to an NTS Professional Services Agreement, then as set forth therein; or (2) if there is no NTS Professional Services covering the NTS Professional Services to be delivered, or if the pricing and/or payment terms for the NTS Professional Services to be delivered are not covered thereby, then as set forth in the applicable NTS Quote.

Relationship of Parties: In all activities hereunder, the relationship of Company and Client shall be that of independent contractors. Neither party shall, directly or indirectly, hold itself out as being a principal, officer or employee of the other party or their respective affiliated companies, or an agent, partner, franchisee or joint venturer of the other or any of their respective affiliated companies.

Intellectual Property Rights: Each party will retain ownership rights to all its previously existing intellectual property, including without limitation any copyright, trade secret, engineering technique, process, and vested or potential trademark and patent rights, including any derivatives, enhancements, or modifications thereto (“Existing Intellectual Property”). In addition, unless otherwise agreed to in writing by NTS, NTS will retain all intellectual property rights developed, created or conceived by it in the performance of any of the NTS Professional Services, including any deliverables to be delivered by NTS as part of the NTS Professional Services. You hereby grant NTS a license to use any and all intellectual property delivered by you to NTS in connection with NTS’s performance of the NTS Professional Services (“Customer Materials”) in the performance of such services. You represent, warrant and covenant to NTS that none of the Customer Materials infringes or will infringe on the intellectual property rights of any other person or entity and that you hold all rights in the Customer Materials to engage NTS to perform the NTS Professional Services with respect to the Customer Materials.

Non-Solicitation: You agree that so long as NTS is performing any NTS Professional Services for you and for a period of two (2) years thereafter, you shall not, and shall cause your affiliates and representatives to not, without the prior written consent of NTS, directly or indirectly, on your own behalf or in the service or on behalf of others, (a) solicit, induce or encourage any person who is then an employee or independent contractor of Newtek or any of its affiliates to terminate his or her employment or engagement with NTS, as applicable, or (b) hire or attempt to hire any person who is or was an employee or independent contractor of NTS or any of its affiliates within the six (6) months immediately prior to the subject date.

Prompt Response; Abandonment: Many of the NTS Professional Services require your timely delivery of documents, materials or information to NTS. In addition, many of the NTS Professional Services are a collaborative process, requiring your ongoing attention and input. You agree that you will promptly respond to any requests or inquiries from NTS and that you will not unreasonably withhold or delay any acceptance or approval of the NTS Professional Services or any portion thereof (to the extent such services require your consent or approval). NTS shall not be responsible for any delays in performing the NTS Professional Services or failures thereof resulting (even in part) from your failure to comply with your obligations in the previous sentence or your failure to deliver any documents, materials or information required to be delivered by you to NTS in order for NTS to perform the NTS Services. If you fail to respond to repeated attempts by NTS to contact you to begin, continue, or finalize the delivery of the NTS Professional Services for a period of two (2) months or more, NTS shall have the right to deem you to have abandoned the applicable NTS Professional Services (an “Abandoned Account”) entitling NTS to cease the performance of any further such NTS Professional Services. In the event NTS does so, you will be obligated to pay the full amount of the NTS Professional for which you contracted and under no circumstances will NTS be obligated to issue you any refund for any amounts paid.

Termination for Cause: NTS may terminate its obligations to provide you any NTS Professional Services if you breach any of your obligations to NTS, whether set forth in these Additional TOS, the Base TOS, an NTS Professional Services Agreement, an NTS Quote or any other agreement by and between you and NTS.