Terms of Service
These Terms and Conditions (this “Agreement”), updated as of 10/10/16 (the “Effective Date”), is between Skigital, a Pennsylvania limited liability company (the “Marketer”) and the business agreeing to these terms and conditions (the “Client”, and together with Marketer, the “Parties”, and each, a “Party”).
WHEREAS, Marketer is in the business of providing digital marketing services.
WHEREAS, Client desires to retain Marketer to provide certain services in connection with the strategy, design and marketing of Client’s brand and their services.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, intending to be legally bound, the Parties agree as follows:
“Confidential Information” means any information that is treated as confidential by a Party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to Clients, pricing, and marketing. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
“Client Intellectual Property” means any Intellectual Property owned by or licensed to Client.
“Client Materials” means proprietary information, documents, samples, products and other materials of Client.
“Deliverables” means all documents, work product and other materials that are delivered to Client hereunder or prepared by or on behalf of Marketer in the course of performing the Services, including any items identified as such in the Statement of Work.
“Disclosing Party” means a Party that discloses Confidential Information under this Agreement.
“Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Key Personnel” means any Marketer Personnel who is identified as being key in the Statement of Work.
“Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Pre-Existing Materials” means the pre-existing all documents, data, know-how, methodologies, software and other materials, including computer programs, reports and specifications, provided by or used by Marketer in connection with performing the Services, in each case developed or acquired by the Marketer prior to the commencement or independently of this Agreement.
“Project” means the project as described in the Statement of Work.
“Receiving Party” means a Party that receives or acquires Confidential Information directly or indirectly under this Agreement.
“Marketer Personnel” means all employees and Permitted Subcontractors, if any, engaged by Marketer to perform the Services.
“Services” mean any professional or other services to be provided by Marketer under this Agreement, as described in more detail in the Statement of Work, and Marketer’s obligations under this Agreement.
“Statement of Work” means the Statement of Work entered into by the Parties, substantially outlined in the Skigital New Client form signed by the Client.
Other terms are defined throughout the text of this Agreement.
2.1 Marketer shall provide the Services to Client as described in more detail in the Statement of Work in accordance with the terms and conditions of this Agreement.
2.2 The Statement of Work shall include the following information, if applicable:
(a) a detailed description of the Services to be performed pursuant to the Statement of Work;
(b) the date upon which the Services will commence and the term of such Statement of Work;
(c) the fees to be paid to Marketer under the Statement of Work;
(e) any criteria for completion of the Project; and
(f) any other terms and conditions agreed upon by the Parties in connection with the Services to be performed pursuant to such Statement of Work.
3. Marketer’s Obligations
3.1 The Marketer shall:
(a) before the date on which the Services are to start, obtain, and at all times during the term of service, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services; and
(b) comply with, and ensure that all Marketer Personnel comply with all rules, regulations and policies of Client, including security procedures concerning Confidential Information.
4. Client’s Obligations
4.1 Client shall:
(a) respond promptly to any Marketer request to provide direction, information, copy approvals, general approvals, authorizations or decisions that are reasonably necessary for Marketer to perform Services;
(b) provide such information as Marketer may reasonably request in order to carry out the Services in a timely manner, and ensure that it is complete and accurate in all material respects;
(c) obtain and maintain all necessary licenses and consents and comply with all applicable law in relation to the Services, in all cases before the date on which the Services are to start; and
4.2 If Marketer’s performance of its obligations is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, Marketer shall not be deemed in breach of its obligations under these terms and conditions or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. Change Orders
5.1 If either Party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other in writing. Marketer shall, within a reasonable time after such request, provide a written estimate to Client of:
(a) the likely time required to implement the change;
(b) any necessary variations to the fees and other charges for the Services arising from the change;
(c) the likely effect of the change on the Services; and
(d) any other impact the change might have on the performance of these Terms and Conditions.
5.2 Promptly after receipt of the written estimate, the Parties shall negotiate and agree, if possible, in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 15.8.
Services shall commence as of the Effective Date and shall continue thereafter until the completion of the Services, or the client wishes to stop services. In this case, the client must provide their wish to terminate 30 days prior to requested termination date.
7. Fees and Expenses; Payment Terms
7.1 In consideration of the provision of the Services by the Marketer and the rights granted to Client, Client shall pay the fees set forth in the Statement of Work and reimburse Marketer for its expenses in connection with the Services.
7.2 The fees for the Services shall be the amount set out in the Statement of Work/Skigital New client form and paid as set forth herein. Any amounts not paid within that period shall bear 1.5% interest per month. Client’s failure to make timely payment is a material breach of these Terms and Conditions.
7.3 Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.
8. Intellectual Property Rights; Ownership
8.1 Subject to and in accordance with the terms and conditions, Client grants Marketer a limited, non-exclusive license during the Term to use, solely in connection with the Services: (i) Client’s Trademarks (ii) Client’s domain names, website addresses, websites and URL’s; and (iii) any Trademarks created by the Marketer on Client’s behalf as part of the Services.
8.2 Client and its licensors are, and shall remain, the sole and exclusive owner of all right, title and interest in and to the Client Materials, including all Intellectual Property Rights therein.
9. Confidential Information
9.1 The Receiving Party agrees:
(a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its officers, employees, consultants and legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 9;
(b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Client, to make use of the Services and Deliverables; and
(c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.
9.2 If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide:
(a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and
(b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If, after providing such notice and assistance as required herein, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
10. Representations and Warranties
10.1 General Representations and Warranties
Each Party represents and warrants to the other Party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering;
(b) it has the full right, power and authority to enter into the agreement outlined in the Skigital New Client form, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;
(c) the execution of agreement outlined in the Skigital New Client form, by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; and
(d) when executed and delivered by such Party, these terms and conditions will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
10.2 Client Representations, Warranties and Covenants
Client represents, warrants and covenants to Marketer that:
(a) it has provided Marketer with a copy of any applicable internal policies or procedures and a written description of any specifications or other requirements or restrictions applying to any of the Services; and
(b) it has, or shall obtain and shall maintain throughout the Term, all rights, licenses and consents required in connection with the Services, including any such right or licenses required to lawfully use, and to authorize Marketer to use, any Client Intellectual Property or Client Materials provided to Marketer for use in connection with the Services.
11.1 Marketer shall defend, indemnify and hold harmless Client and its officers, directors, employees, agents, successors and permitted assigns (each, a “Client Indemnitee”) from and against all Losses arising out of or resulting from Marketer’s material breach of any representation or warranty set forth in these Terms and Conditions.
11.2 Client shall defend, indemnify and hold harmless Marketer and its officers, directors, members, employees, agents, successors and permitted assigns from and against all Losses arising out of or resulting from:
(a) any third party action;
(b) the grossly negligent or willful acts or omissions of Client; or
(c) Client’s breach of any representation, warranty or obligation of Client as outline in these Terms and Conditions.
11.3 The Party seeking indemnification hereunder shall promptly notify the indemnifying Party in writing of any action and cooperate with the indemnifying Party at the indemnifying Party’s sole cost and expense. The indemnifying Party shall immediately take control of the defense and investigation of such action and shall employ counsel of its choice to handle and defend the same, at the indemnifying Party’s sole cost and expense. The indemnified Party’s failure to perform any obligations under this Section 11.3 shall not relieve the indemnifying Party of its obligations under this Section 11.3 except to the extent that the indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified Party may participate in and observe the proceedings at its own cost and expense.
12. Limitation of Liability
12.1 LIMITED LIABILITY. IN NO EVENT WILL MARKETER BE LIABLE TO CLIENT OR TO ANY THIRD PARTY 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.
12.2 MAXIMUM LIABILITY. MARKETER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED TWO (2) TIMES THE TOTAL OF THE AMOUNTS PAID TO MARKETER PURSUANT TO THE STATEMENT OF WORK.
13. Termination; Effect of Termination
13.1 Either Party, in its sole discretion, may terminate services at any time without cause by providing at least sixty (60) days’ prior written notice to the other Party (the “Date of Termination”). Client shall immediately pay for all Services provided up to the Date of Termination.
13.2 Upon a material breach of these Terms and Conditions (“Default”), if such breach is incapable of cure, or, with respect to a material breach capable of cure, if the party in Default (the “Defaulting Party”) does not cure such breach within thirty (30) days after receipt of written notice of the Default, the non-defaulting Party may terminate effective upon written notice to the Defaulting Party.
13.3 Upon expiration or termination of Statement of work for any reason:
(a) Marketer shall promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Client Materials.
(b) Each Party shall (i) 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, (ii) permanently erase all of the other Party’s Confidential Information from its computer systems and (iii) if requested by the other Party, certify in writing to the other Party that it has complied with the requirements of this clause.
13.4 The rights and obligations of the Parties set forth which, by its nature, should survive termination or expiration, will survive any such termination or expiration of these Terms and Conditions.
The Marketer retains the right to perform the same or similar type of services for all other parties, including third parties during the Term of service.
15.1 Each Party shall, upon the reasonable request of the other Party, execute such documents and perform such acts as may be necessary to give full effect to the terms.
15.2 The relationship between the Parties is that of independent contractors. Nothing contained in this Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
15.3 All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties.
If to Marketer:
1455 Grove Ave
West Chester, Pa 19380
Attention: Kimberly A. Cunningham and Shanna P. DeCola
15.4 These terms and conditions shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The Schedules, Exhibits and Statements of Work referred to herein shall be construed with, and as an integral part of, these Terms,to the same extent as if they were set forth verbatim herein.
15.5 These Terms and Conditions, together with all Schedules, Exhibits and Statements of Work and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties to these Terms with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
15.6 Client may not assign, transfer or delegate any or all of its rights or obligations under these Terms without the prior written consent of the Marketer. No assignment shall relieve the Client of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void.
15.7 These Terms are for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of these Terms and Conditions.
15.8 These Terms may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms and Conditions 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.
15.9 If any term or provision of this Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and conditions or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify these terms so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.10 These Terms and Conditions shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. Any legal suit, action or proceeding arising out of or related to these Terms or the Services provided hereunder shall be instituted exclusively in the courts of the Commonwealth of Pennsylvania in each case located in the County of Chester, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
15.11 Each Party acknowledges that a breach by a Party of Section 8 (Intellectual Property Rights; Ownership) or Section 9 (Confidential Information) may cause the non-breaching Party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching Party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in these Terms and Conditions to the contrary.
15.12 These Terms and Conditions may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.