I. DEFINITIONS

Proactivate - Proactivate.com, Inc., a Kansas based corporation having the corporate address shown on the website.

Client - Individual or organization using Proactivate's services, website, tools, contractors or any other significant interaction with Proactivate.

Subcontractor(s) or Service Providers(s) - Any individual, organization or entity which contracts with Proactivate to provide services or advice on a daily, hourly, project or any other basis.

Engagement(s) or Solution(s) - Work performed and described in the Statement of Work.

Statement of Work - First half of the complete agreement between Proactivate and Client or Proactivate and Service Provider(s), the second half of which is this Terms and Conditions of Service document.  The Statement of Work describes the project specific work to be completed and the prices associated with that work.

II.  SUBJECT MATTER OF AGREEMENT

A.  The services which Proactivate provides to the Client and which Service Providers provide to Proactivate are governed by this Service Agreement and these Terms and Conditions.  The particular services, applicable fees and scope of work are specified in the "Statement of Work" document.

B.  The parties will support each other in the performance of this agreement.  The Client and Service Providers will designate a project manager who is the legal authority to make binding decisions with Proactivate.

III.  PRINCIPLE CONDITIONS

A.  Proactivate may choose the means and methods to complete the project and on which basis the services may be performed.  The Client has the right to be informed about these methods in so far as the information is necessary to verify compliance with this agreement.

B.  Proactivate shall determine at its discretion the place and ways in which the services are provided.

C.  All notifications and changes to this agreement must be made in writing.

D.  Proactivate is an independent contractor.  No provision can be interpreted as to establish a joint venture or an agency, or an employment relation between Proactivate and its Clients or the Service providers unless agreed to in writing (offer of employment) by both parties.

IV. OWNERSHIP OF MATERIALS RELATED TO SOLUTIONS AND RIGHTS TO WORKING RESULTS

A.  The parties agree that all information, drawings, documents and materials authored or prepared, in whole or in part, by Proactivate or it's Service Providers while providing Solutions hereunder, including without limitation computer programs, computer systems, data, computer documentation or other material whatsoever ("Works"), are the sole and exclusive property of Proactivate until Client completes payment according to the terms and conditions specified herein or in the Statement of Work.  All works shall be considered works made for hire. In the event any such Works do not fall within the specifically enumerated works that constitute works made for hire under the United States Copyright laws, solution provider hereby agrees to assign and, upon their authorship or creation, expressly and automatically assigns all copyrights, proprietary rights, trade secrets, and other right, title and interest in and to such Works to Proactivate and Client. 

B.  Proactivate grants the CLIENT the right to use the working results that result from Proactivate's services and produced in connection with this agreement on a non-exclusive, non-transferable, royalty-free, perpetual and worldwide basis.  In all cases, Proactivate maintains all rights in the working results that are generic in nature such as tools, utilities and subroutines which particularly includes the right to provide other customers with the same working results.  Service Providers agree to render all reasonably required assistance to Proactivate to protect the rights herein above described. This paragraph shall survive the cancellation, expiration or termination of this agreement.

V.  THIRD PARTY RIGHTS AND TRANSFER OF RIGHTS

A.  No party is entitled to transfer the rights and/or obligations deriving out of this agreement to third parties.

B.  The Client shall indemnify Proactivate for all claims that will be raised by third parties in connection wit the modification and/or use of computer programs, intellectual material, marketing collateral or any other such third party material not provided directly by Proactivate but used in the completion of deliverables for Client.

VI. SOLUTIONS ESSENTIAL

The parties agree that the Services to be provided by Proactivate's network of Service Providers are essential to the satisfactory performance and completion of the Engagement(s). If the Service Provider leaves the network of Proactivate during the term of this Agreement for any reason or is unavailable to continue work called for herein, Proactivate shall have a minimum period of seven (7) working days to secure the services of substitute individuals. If replacement Service Providers are not available, Client shall have the right to terminate this Agreement.

VII. PROFESSIONAL NETWORK WARRANTIES

Service Provider or Subcontractor warrants that:

A. It is the Subcontractor's sole responsibility to review the terms of its Agreements, the policies and forms, the Statement of Work and Exhibits with their individual Service Providers, and to ensure that all their Service Providers have agreed to the Terms of this Agreement and can perform the work tasks listed in the Proactivate Statement of Work.

B.  All Service Providers provided by Subcontractor to Proactivate under this Agreement are employees or independent contractors of Subcontractor, and Subcontractor has the right and authority to direct Service Providers to provide the Services to Proactivate as required by this Agreement;

C.  All Subcontractor’s Service Providers providing services to Proactivate are legally authorized to work in the country in which they do business;

D.  Service Provider's performance of the Services called for by this Agreement does not and shall not violate any applicable law, rule, or regulation; any contracts with third parties; or any third-party rights in any patent, trademark, copyright, trade secret, or any other proprietary right; and

E.  The software and all other products, documentation and other materials required to be delivered by Subcontractor or Service Provider hereunder, the development and use by Proactivate thereof, and the performance by Subcontractor of its obligations hereunder, shall be in compliance with all applicable laws, rules and regulations as of the date of delivery thereof.

This paragraph shall survive the cancellation, expiration or termination of this Agreement.

VIII. COMPLIANCE WITH PROACTIVATE.COM's POLICIES AND BUDGETS

The Subcontractor or Service Provider agrees to perform to the best of their respective abilities any and all work assigned by Proactivate or its Clients in accordance with Proactivate's policies and procedures listed in the contract, the applicable work tasks in the Proactivate Statement of Work and the pricing listed in the SOW and its Exhibits. Without limiting the foregoing, the Services shall be performed in a timely and professional manner by duly qualified individuals.

IX.  INDEMNIFICATION

Subcontractors and Service Providers hereby agree to indemnify, hold harmless and defend Proactivate and any officers, employee or agent thereof (each of the foregoing being hereinafter referred to individually as an "Indemnified Party") against all claims, liabilities, losses, expenses (including Attorney's fees and legal expenses related to such defense), fines, penalties, taxes or damages (collectively "Liabilities") asserted by any third party where such Liabilities arise out of or result from

(1) the negligence of Subcontractor or Service Provider in providing any Services hereunder; or
(2) the representations or warranties made by Subcontractor hereunder, or their breach; or
(3) the violation by Subcontractor or Service Provider of any third party's trade secrets, proprietary information, trademark, copyrights, or patent rights in connection with the performance by Subcontractor or Service Provider of the Services hereunder; or
(4) a claim that any Service Provider is not an employee of Subcontractor. Subcontractor's obligation to indemnify and defend any Indemnified Party will survive the cancellation, expiration or termination of this Agreement by either party for any reason.

Proactivate shall promptly notify Subcontractor of any third party claim and Subcontractor shall at Proactivate's option, conduct the defense in any such third party action arising as described herein at Subcontractor's sole expense and Proactivate shall cooperate with such defense.

X. EXCLUSIVITY

During the term of this Agreement, Proactivate or it's Clients may engage the services of any other individual or entity that competes directly with Subcontractor or Service Provider for the Subcontractor’s or Service Provider's offering or offers services essentially similar to those offered by Subcontractor, and any such engagement shall be not considered a breach of this Agreement.

XI. PROACTIVATE.COM OR CLIENT CONFIDENTIAL INFORMATION

All documents, software, reports, data, records, forms and other materials developed by Subcontractor or Service Provider for Proactivate or its Clients or obtained by Subcontractor or Service Provider in the course of performing any Services (including, but not limited to, Client records and Proactivate's Client list, if furnished to the Subcontractor) are the proprietary, confidential and trade secret information of Proactivate. The Subcontractor and each Service Provider will deliver to Proactivate all such materials and all copies thereof (and all other properties obtained from or through Proactivate) when Proactivate requests the same, when a Service Provider is no longer providing Solutions to Proactivate under this Agreement, and immediately upon termination of this Agreement. Neither the Subcontractor nor any Service Providers shall use or disclose to any person, firm or entity any proprietary, confidential or trade secret information of Proactivate or its Clients without Proactivate's express, prior, written permission. This paragraph shall survive the cancellation, expiration or termination of this Agreement.

XII. INDEPENDENT CONTRACTOR

Subcontractor or Service Provider represents and warrants that it is an independent contractor and that neither it nor its Service Providers are serving as an employee of Proactivate under this Agreement. Subcontractor shall be responsible for all taxes, workers compensation and other expenses and liabilities attributable to the rendition of Services hereunder to Proactivate and its Clients and Subcontractor shall indemnify, hold harmless and defend Proactivate from any and all claims, liabilities, damages, taxes, fines or penalties sought or recovered by any governmental entity, including but not limited to Internal Revenue Service or any state taxing authority arising out of Subcontractor's or any Service Provider's alleged failure to pay federal, state or local taxes during the term of this Agreement.

Nothing in this Agreement shall be deemed to constitute a partnership or joint venture between Proactivate and Subcontractor, nor shall anything in this Agreement be deemed to constitute the Subcontractor or Proactivate the agent of the other. Neither Subcontractor nor Proactivate shall be or become liable or bound by any representation, act or omission whatsoever of the other.

XIII.  NON-SOLICITATION OF PROACTIVATE.COM'S CLIENTS

During the term of this Agreement and twelve months after its termination, expiration or cancellation, Subcontractor, its affiliates, subsidiaries, any related parties thereto or Service Providers shall not provide or offer to provide, services to any Proactivate Clients except in the case that those Clients are existing customers of Subcontractor. Proactivate understands that Subcontractor may currently have business relationships with established Proactivate customers, and Proactivate acknowledges and respects those relationships. If Subcontractor is already working with the Proactivate Client mentioned during the lead passing process, then Subcontractor will notify Proactivate immediately. Once Subcontractor accepts to perform a job for Proactivate and the SOW is signed by the Subcontractor, then Subcontractor has agreed that the Clients listed in the SOW are jointly Subcontractor and Proactivate Clients. Subcontractor agrees not to provide or offer to provide services to these Clients other then through Proactivate for the term of this agreement or for twelve months thereafter. Any exclusions or exceptions to this policy must be approved by Proactivate and special exceptions must be noted in the SOW of each individual project. It is Subcontractor's responsibility to ensure that their Service Providers agree to abide by this agreement as long as they are employed by Subcontractor.

XIV. SEVERABILITY

In the event that any term or provision of this Agreement shall be held to be invalid, void or unenforceable, then the remainder of this Agreement shall not be affected, impaired or invalidated, and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. This Agreement shall be governed by and construed in accordance with the laws of the state of Kansas.

XV. DISPUTE RESOLUTION

Any law suit or court action between the parties shall be filed in the Court of Montgomery County, KS. If any party hereto shall bring an action against the other party hereto arising out of this Agreement, whether or not by reason of the breach of any covenant, warranty, representation or condition of the Agreement or any schedule or exhibit hereto, whether for declaratory, equitable, legal or statutory relief of any kind, the prevailing party shall be entitled to such party's reasonable attorney's fees and costs of suits, which shall be payable whether or not such action is prosecuted to judgment.

XVI.  NON-HIRING OF SUBCONTRACTORS / SERVICE PROVIDERS

During the term of this Agreement and one year after its termination, expiration or cancellation, Proactivate agrees not to hire the Subcontractor's Service Providers mentioned in the SOW, without written permission from the Subcontractor.

During the term of the SOW and one year after its termination expiration or cancellation, Client agrees not to hire as independent contractors or employees the Proactivate Service Providers mentioned in the SOW or who interact with the Client or who perform on the Engagement(s) for which the Client contracts.

XVII.  WARRANTIES

A.  Proactivate warrants rendering its services in accordance with the accepted standards of the industry.

B.  Proactivate shall use its best efforts to support the customer with regard to the implementation and use of the services rendered in accordance with this agreement.

C.  Proactivate assumes no warranty whatsoever that the services rendered under this agreement can be used in a commercially profitable manner or that these services will produce any commercial result which the Client may desire.   The sole responsibility for profitable use of Proactivate supplied services rests with the Client.

XVIII.  LIABILITIES

Proactivate is not liable for lost profits, indirect, consequential or incidental damages.  The liability of Proactivate is further limited by the amount that is paid or owed to Proactivate by the customer for the services accruing in one month for a particular Statement of Work.

XIX.  TERM AND TERMINATION

A.  The term of this agreement is provided in the Statement of Work.  If no minimum term is provided for or if the minimum duration has expired, the agreement will remain in effect until either party terminates it in writing to the other.  The notice of termination amounts to two weeks.

B.  If a party to this agreement fails to meet a substantial obligation and if the incompliance is not cured within 15 days after notification, the other party may terminate the agreement with immediate effect.  The other party may not deny its consent to an extension of this 15 day period if the failing party takes all efforts to cure the incompliance and if the extension is fair and reasonable.

XX.  CHARGES AND PAYMENTS

A.  Unless otherwise provided for in the Statement of Work, Proactivate will charge for its services on the basis of the time spent at the then current consulting rates which do not include tax.  The Client shall reimburse traveling and other direct costs, which accrue for the performance of services outside the home region of the Service Providers. 

B.  All payment limits indicated in the Statement of Work is deemed to be a pure estimate unless otherwise provided for in the Statement of Work.  Proactivate will inform the customer in advance of any payment limit overruns.   Unless the customer requests in writing within 10 days after notification, Proactivate is entitled to continue performing its services in accordance with the rates set forth in the Statement of Work.

XXI.  LATE PAYMENT PENALTIES, SECURITY DEPOSITS AND COLLECTION

Terms of payment between Client and Proactivate are clearly indicated on Statements of Work and Invoices.  By default, payment for services rendered for new Clients is UPON RECEIPT unless so indicated in Statement of Work.  Payments which are not received according to the terms indicated in the Statement of Work or Contract are subject to late payment charges of 1.5% monthly on the unpaid balance. Costs related to collection of late payments will be paid by Client and may include but are not limited to: hourly payment tracking charges at the rate of the contract for which payment is pursued, travel expenses, legal fees, bank charges, returned check charges, credit card charges, etc. Proactivate reserves the right to require a security deposit for any Client as deemed necessary by Proactivate management. This deposit will be returned to the Client after payment of final invoices. If final invoice is paid in full, Proactivate will reimburse Client for interest collected on the deposit at the prevailing bank interest rate for the period the deposit is held (usually 0.1% annually).

XXII.  INTEGRATION

A.  This Agreement in combination with the Statement of Work constitutes the entire agreement of the parties hereto and supersedes all prior and contemporaneous representations, proposals, discussions, and communications, whether oral or in writing. This Agreement may be modified only in writing and shall be enforceable in accordance with its terms when signed by each of the parties hereto.

B.  The parties are free to conclude comparable or similar agreements with other parties.

C.  In the event individual provisions of this agreement are deemed to be void, the rest of the agreement will remain enforced.  The provision which is deemed to be void will be replaced by a provision which comes closest to the intentions of the parties at the time of the conclusion of this agreement.

D.  In case of a conflict between the Statement of Work and this agreement, the provisions of this agreement will prevail.