Customer Agreement

This Playhaus Customer Agreement (this “Agreement”) contains the terms and conditions that govern your access to and/or use of the Services (defined below) and is an agreement between Playhaus Corporation, a Delaware corporation (“Playhaus”), and you or the entity you represent (“Client”). Playhaus and Client are sometimes referred to herein together as the “Parties” and each individually as, a “Party.” This Agreement takes effect as of the effective date of any applicable Statement of Work (the “Effective Date”). If you are entering into this Agreement for an entity, such as the company you work for, you represent to Playhaus that you have the legal authority to bind that entity.

WHEREAS, Playhaus provides a variety of business services to fulfill creative, engineering, planning, strategic, analytical, marketing, and web3 needs and Client seeks to engage Playhaus to provide certain services set forth on any applicable Statement of Work (as defined below) (the “Services”).

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Playhaus Responsibilities.
1. Playhaus Services. Playhaus will use commercially reasonable efforts to provide to Client the Services set forth in one or more statements of work to be issued by Client and accepted by Playhaus (each, a “Statement of Work”). Statements of Work shall be deemed accepted and incorporated into this Agreement only if signed by each of the Parties. Playhaus shall provide the Services in accordance with the terms and subject to the conditions set forth in the relevant Statement of Work and this Agreement.
2. Playhaus Contract Manager and Personnel.
  1. Playhaus will:
    1. appoint an employee to serve as the primary contact with respect to this Agreement who will have the authority to act on behalf of Playhaus in connection with matters pertaining to this Agreement (the “Playhaus Contract Manager”);
    2. hire, supervise, direct, and discharge all employees and Playhaus Subcontractors (as defined below) (collectively, the “Playhaus Personnel”) necessary to perform the Services, each of whom shall be suitably skilled, experienced and qualified; and
    3. upon reasonable request of Client, replace the Playhaus Contract Manager and any other applicable Playhaus Personnel.
  2. Playhaus will be responsible for the payment of all compensation owed to the Playhaus Personnel, including, if applicable, the payment and withholding of social security and other payroll taxes, withholding of income taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.
  3. Playhaus may, from time to time, enter into agreements with or otherwise engage any person who is not a Playhaus employee, including any independent consultants, contractors, subcontractors, or affiliates of Playhaus (each such third party, a “Playhaus Subcontractor”), to provide any services or deliverables to Client in connection with the Services. Client’s approval shall not relieve Playhaus of its obligations under the Agreement, and Playhaus shall remain fully responsible for the performance of each such Playhaus Subcontractor and its employees and for their compliance with all the terms and conditions of this Agreement as if they were Playhaus’ own employees. Nothing contained in this Agreement shall create any contractual relationship between Client and any Playhaus Subcontractor.
  4. All persons employed by Playhaus in connection with the Services shall either be employees of Playhaus or consultants or independent contractors retained by Playhaus. Playhaus shall be solely responsible for complying with all laws and collective bargaining agreements affecting such persons.
  5. Playhaus shall require each Playhaus Subcontractor to be bound in writing by the confidentiality and intellectual property assignment or license provisions of this Agreement.
3. No Exclusivity. Playhaus retains the right to perform the same or similar type of services for third parties during the Term (defined below) of this Agreement.
4. Restrictions on Expenditures. Subject to 4.1, Playhaus shall not incur any cost or make any expenditure in connection with any Service without Client’s prior written approval.
5. Compliance with Laws. Playhaus will at all times comply with applicable federal, state, and local laws, ordinances, regulations, and orders that are applicable to this Agreement and its performance hereunder, except to the extent that failure to comply would not, in the aggregate, reasonably be expected to have a material adverse effect on its ability to comply with its obligations under this Agreement.
Client Responsibilities.
1. Client will:
  1. Appoint and, in its reasonable discretion, replace a Client representative to serve as the primary contact with respect to this Agreement, which representative will have the authority to act on behalf of Client with respect to matters pertaining to this Agreement (the “Client Contract Manager”).
  2. Provide copies of or access to Client’s information, documents, samples, products, or other material (collectively, “Client Materials”) as Playhaus may request in order to carry out the Services in a timely manner.
  3. Client and its licensors are and shall remain the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including any and all trade secrets, trademarks, domain names, original works of authorship and related copyrights, and any other intangible property in which any person holds proprietary rights, title, interests, or protections, however arising, pursuant to the laws of the United States of America or relevant state law therein (collectively “Intellectual Property”). This shall include all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing.
  4. Respond promptly to any Playhaus request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Playhaus to perform the Services in accordance with the requirements of this Agreement.
Intellectual Property Rights; Ownership.
1. License to Certain Client Intellectual Property.
  1. Subject to and in accordance with the terms and conditions of this Agreement, Client grants Playhaus and its affiliates and Playhaus Subcontractors a limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable, worldwide license during the Term to use Client’s Intellectual Property solely to the extent necessary to provide the Services to Client.
  2. Client grants no other right or license to any Client Intellectual Property to Playhaus by implication, estoppel, or otherwise. Playhaus acknowledges that Client owns all right, title, and interest in, to, and under the Client’s Intellectual Property and that Playhaus shall not acquire any proprietary rights therein. Any use by Playhaus or any affiliate, employee, officer, director, partner, shareholder, agent, attorney, third-party advisor, successor or permitted assign (collectively “Representatives”) of Playhaus of any of Client’s Intellectual Property and all goodwill and other rights associated therewith shall inure to the benefit of Client.
2. Ownership of and License to Deliverables.
  1. Except as set forth in 3.2(c), Client is and shall be, the sole and exclusive owner of all right, title, and interest in and to all documents, work product, and other materials that are delivered to Client hereunder by or on behalf of Playhaus in connection with the materials developed or created in the course of performing the Services, including all Intellectual Property therein (collectively, the “Deliverables”). Playhaus acknowledges and will cause Playhaus Personnel to agree that with respect to any copyrights in any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, Client shall own the copyrights in such Deliverables as a “work made for hire” for Client. With respect to any of the Deliverables that do not constitute a “work made for hire,” Playhaus hereby irrevocably assigns and shall cause the Playhaus Personnel to irrevocably assign to Client, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables. The Playhaus shall cause the Playhaus Personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such Playhaus Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.
  2. Upon the reasonable request of Client, Playhaus shall, and shall cause the Playhaus Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any Deliverables.
  3. In the course of providing the Services, Playhaus will be using certain pre-existing materials consisting of documents and materials of Playhaus including data, know-how, methodologies, software, and other materials such as computer programs, reports, and specifications, in each case developed or acquired by Playhaus prior to the commencement or independently of this Agreement (collectively, the “Pre-Existing Materials”). Playhaus and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property therein. Playhaus hereby grants Client a perpetual, limited, royalty-free, non-transferable (except in accordance with 11.9), non-sublicensable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Playhaus.
  4. In the course of providing the Services, Playhaus will be using certain third-party materials consisting of documents, data, content, or specifications of third parties, and components or software including open-source software that are not proprietary to Playhaus (collectively, the “Third-Party Materials”), Client shall have a limited, royalty-free, non-transferable (except in accordance with 11.9), non-sublicensable, worldwide license to use the Third-Party Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Client or any third party, any Intellectual Property rights in the Third-Party Materials, by implication, waiver, estoppel, or otherwise.
Fees and Expenses; Payment Obligations.
1. Fees and Expenses.
  1. In consideration of the provision of the Services and the rights granted to Client under this Agreement, Client shall pay Playhaus:
    1. the fees set forth on each applicable Statement of Work (the “Fixed Fee Services”), which amount shall be exclusive of any costs of materials or other expenses of Playhaus in providing such Services;
    2. on a time and materials basis for the Services set forth on the applicable Statement of Work (the “Variable Fee Services”), calculated in accordance with the fee rates set forth on each applicable Statement of Work and Playhaus’s actual cost for any materials, machinery, equipment, and third-party services reasonably necessary for the provision of each Variable Fee Service in any month without prior written notice to the Client;
  2. Client agrees to reimburse Playhaus for all reasonable travel and out-of-pocket expenses incurred by Playhaus in connection with the performance of the Services.
  3. Playhaus shall issue monthly invoices to Client for the fees that are then payable, together with a detailed breakdown of any expenses incurred in accordance with ection 4.1(b).
  4. Payment to Playhaus of the fees set forth in 4.1(a)(i) and 4.1(a)(ii) and the reimbursement of expenses pursuant to 4.1(b) shall constitute payment in full for the performance of the Services, and Client shall not be responsible for paying any other fees, costs, or expenses.
2. Payment. Client shall pay all properly invoiced amounts due to Playhaus within thirty (30) days after Client’s receipt of such invoice, except for any amounts disputed by Client in good faith and in accordance with 4.4.
3. Taxes. All fees payable by Client under this Agreement are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts. Playhaus shall be responsible for any taxes imposed on, or with respect to, Playhaus’s income, revenues, gross receipts, personnel, or real or personal property, or other assets. Client shall be solely responsible for the payment of any sales and use taxes assessed against the sale of Client’s goods and services.
4. Invoice Disputes. Client shall notify Playhaus in writing of any dispute with an invoice (along with substantiating documentation of the dispute) within ten (10) business days from the date of such invoice. Client will be deemed to have accepted all invoices for which Playhaus does not receive timely notification of dispute and shall pay all undisputed amounts due under such invoices within the period set forth in 4.2. The Parties shall seek to resolve all such disputes expeditiously and in good faith.
5. Late Payments. Except for invoiced payments that Client is disputing under Section 4.4, Client shall pay interest on all late payments, calculated daily at the lesser of the rate of 3% per year or the highest rate permissible under applicable law. Client shall also reimburse Playhaus for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
Representations, Warranties, and Certain Covenants.
1. Playhaus represents, warrants, and covenants to Client that:
  1. it shall materially comply with, and ensure that all Playhaus Personnel and Playhaus Subcontractors comply with, all specifications, rules, regulations, and policies of Client that are communicated to Playhaus in writing in advance of the date hereof:
  2. Client will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind;
  3. to the actual knowledge of Playhaus, no Deliverables provided in electronic form by Playhaus to Client contain or will contain any (i) trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access or to disable, erase, or otherwise harm any computer, systems or software, or (ii) any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of a person other than an authorized licensee or owner of a copy of the program or the right and title in and to the program; and
2. NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 5.1, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW[, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE,] OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5.
Indemnification.
1. Client Indemnification Obligations. Client shall defend, indemnify, and hold harmless Playhaus, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Playhaus Indemnified Party”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) , that are arising out of or resulting from any third-party claim or direct claim alleging:
  1. breach by Client or Playhaus Personnel of any representation, warranty, covenant, or other obligations set forth in this Agreement;
  2. negligence or more culpable act or omission of Client or Playhaus Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; and
  3. that any Client Materials or Client Intellectual Property or Playhaus’s receipt or use thereof in accordance with the terms of this Agreement infringes any Intellectual Property of a third party.
2. Playhaus Indemnification Obligations. Playhaus shall defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, successors, and permitted assigns (collectively, “Client Indemnified Party”), from and against any and all Losses, arising out or resulting from any third-party claim alleging:
  1. material breach by Playhaus or Playhaus Personnel of any obligations set forth in this Agreement;
  2. willful misconduct, fraud, or illegal acts of Playhaus or Playhaus Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
  3. that any of the Services or Deliverables or Client’s receipt or use thereof infringes any Intellectual Property of a third party arising under the laws of the United States.
3. Exceptions and Limitations on Indemnification.
  1. Notwithstanding anything to the contrary in this Agreement, neither Party is obligated to indemnify or defend the other Party or any of its Representatives against any Losses arising out of or resulting, in whole or in part, from the other Party’s:
    1. willful, fraudulent, or illegal acts or omissions; or
    2. bad faith failure to materially comply with any of its material obligations set forth in this Agreement.
  2. Notwithstanding anything to the contrary in this Agreement, Playhaus shall have no obligations to indemnify or defend Client or any of its representatives against any Losses arising out of or resulting, in whole or in part, from infringement claims relating to:
    1. any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client in writing to Playhaus;
    2. Client’s use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Playhaus, if the infringement would have been avoided by the use of the Deliverables or Intellectual Property of Playhaus not so combined; or
    3. any modifications or changes made to the Deliverables by or on behalf of any person other than Playhaus or Playhaus Playhaus Personnel.
4. Indemnification Procedures. A party seeking indemnification under this 6 (the “Indemnified Party”) shall give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
5. EXCLUSIVE REMEDY. EXCEPT FOR THE EQUITABLE REMEDIES AVAILABLE TO THE PARTIES SET FORTH IN 11.8, THIS 6 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 6.
Limitation of Liability.
1. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. MAXIMUM LIABILITY. PLAYHAUS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO PLAYHAUS PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Insurance. During the Term, Playhaus shall, at its own expense, maintain and carry in full force and effect, commercially reasonable levels of insurance coverage.
Confidentiality. From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 9 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable law. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party’s Representatives who may need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 9 caused by any of its representatives.
Term; Termination.
1. Term. The term of this Agreement commences on the effective date specified in the first Statement of Work among the parties thereto and will continue until completion of the Services under all applicable Statements of Work, unless it is earlier terminated in accordance with the terms of this Agreement (the “Term”).
2. Termination for Cause.
  1. Either Party may terminate this Agreement, effective upon written Notice, to the other Party (the “Defaulting Party”) if the Defaulting Party:
    1. materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure (other than a failure by Client to make timely payments (a “Payment Failure”), which is separately addressed in 10.2(b)), the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach;
    2. becomes insolvent or is generally unable to pay its debts as they become due;
    3. files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
    4. makes or seeks to make a general assignment for the benefit of its creditors;
    5. applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
    6. is dissolved or liquidated; or
    7. is unable to perform its obligations under this Agreement due to the occurrence of a any act beyond the impacted party’s reasonable control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; and (g) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials,
  2. Playhaus may terminate this Agreement, effective if:
    1. a Payment Failure by Client continues for 30 days after Client’s receipt of written notice of nonpayment; or
3. Termination without Cause. Playhaus may terminate this Agreement or any Statement of Work for any reason provided 90 days prior written notice to Client.
4. Effect of Expiration or Termination.
  1. Expiration or termination of this Agreement will not affect any rights or obligations that:
    1. are to survive the expiration or earlier termination of this Agreement; and
    2. were incurred by the Parties prior to such expiration or earlier termination.
  2. Upon the expiration or termination of this Agreement for any reason, each Party shall promptly:
    1. return to the other Party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information;
    2. permanently erase all of the other Party’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery or information technology backup systems, which it shall destroy upon the normal expiration of its backup files; and
    3. certify in writing to the other Party that it has complied with the requirements of this clause.
  3. Upon expiration or termination of this Agreement for any reason, Playhaus shall:
    1. promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Client Materials;
    2. provide reasonable cooperation and assistance to Client upon Client’s written request and at Client’s expense in transitioning the Services to an alternate agency; and
    3. on a pro-rata basis, repay any fees and expenses paid in advance for any Services or Deliverables that have not been provided.
  4. Subject to 10.4(a), the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of either Party’s rights, remedies, or defenses under this Agreement, at law, in equity or otherwise.
Miscellaneous.
1. Entire Agreement. This Agreement, including the related schedules attached hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
2. Survival. Subject to the limitations and other provisions of this Agreement, (a) 5 (Representations, Warranties, and Certain Covenants) shall survive the expiration or earlier termination of this Agreement for a period of 12 months after such expiration or termination; and (b) 4 (Fees and Expenses; Payment Obligations), 6 (Indemnification), 7 (Limitation of Liability), 9 (Confidentiality), 10 (Term; Termination), and n 11 (Miscellaneous), of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement for the period specified therein, or if nothing is specified for a period of 12 months after such expiration or termination.
3. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the signature page of the applicable Statement of Work of which such notice relates (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this 11.3.
4. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
5. Amendment and Modification. Playhaus may, from time to time, amend the terms of this Agreement in its sole discretion, provided that, and notwithstanding any Notice requirements set forth in 11.3, Playhaus provides 10 days advanced written notice to Client via the email address provided by Client to Playhaus and at the web location this agreement resides.
6. Waiver. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
7. Cumulative Remedies. Except as set forth in 6, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
8. Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under 9 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Client of any such obligations, Playhaus shall, in addition to any and all other rights and remedies that may be available to Playhaus at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this 11.8.
9. Assignment. Client may not assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of Playhaus. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. A sale of substantially all of the assets of Client or a sale of greater than 50% of the equity of Client shall each constitute an “Assignment” of this Agreement for purposes of this Section 11.9.
10. No Third-Party Beneficiaries.
  1. Subject to tion 11.10(b), this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
  2. The Parties hereby designate the Client Indemnified Parties and Playhaus Indemnified Parties as third-party beneficiaries of tion 6 of this Agreement having the right to enforce 6.
11. Choice of Law. This Agreement and all related documents including all exhibits attached hereto and all applicable Statements of Work are governed by, and construed in accordance with, the laws of the State of Delaware, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.
12. Choice of Forum. Neither Party shall commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the Federal District Court of the Western District of Missouri or the courts of the State of Missouri sitting in Jackson County, and any appellate court thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the Federal District Court of the Western District of Missouri. A final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
13. Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Playhaus is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
14. Conflict. In the event that a term of any applicable Statement of Work by and between Client and Playhaus conflicts with the terms of this Agreement, the terms of this Agreement shall govern.

Last Updated: July 17, 2023

CUSTOMER AGREEMENT

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