1. Introduction

This Services Agreement explains Cheeky Monkey Media’s (Provider) obligations to Customer and Customer’s obligations to Provider in relation to the Services which the Customer purchases from Provider.

2. Agents and Accurate Information

Customer includes any agent including, but not limited to: primary contact, project liaison, administrator, employee, or representative indicated by Customer. By purchasing from Provider, Customer agrees to the terms and conditions outlined in this Services Agreement. Customer agrees to: (a) provide certain true, current, complete and accurate information required by this Services Agreement and/or engaged Services and; (b) maintain and update the information provided to Provider when purchasing Provider’s Services as needed to keep it current, complete and accurate. Customer agrees that, if Customer’s agent purchases Provider’s Services on Customer’s behalf, Customer is nonetheless bound as a principal by all terms and conditions herein. By using Customer’s username and password for Provider’s collaboration environment, or otherwise purporting to act on Customer’s behalf, Customer’s agent certifies that he or she is authorized to apply for Provider’s Services on Customer’s behalf, that he or she is authorized to approve and accept milestones required for continuation of Services, that he or she is authorized to bind Customer to the terms and conditions of this Services Agreement, that he or she has informed Customer of the terms and conditions of this Services Agreement, and that he or she is otherwise authorized to act on Customer’s behalf. In addition, Customer is responsible for any errors made by Customer’s agent.

3. Services

Sections 1 through 19 apply to any and all Services purchased by Customer from Provider. Services are outlined by Provider in but not limited to, Schedules of Work and Change Requests. Customer accepts Services by faxing, mailing, and/or emailing the documents outlining said Services to Provider with Customer’s signature, or accepting Services electronically through Bidsketch. In the event of any inconsistency between Services and the terms and conditions of this Services Agreement, the terms of the Services shall prevail.

Any request for a change by Customer or Provider to a particular Schedule of Work must be made in writing and delivered to the other party. Provider shall deliver to Customer a Change Request which references the affected Schedule of Work and this Services Agreement, incorporating the requested changes and containing any revisions including but not limited to, project budget, deliverables and deadlines. If Customer accepts such Change Request, then the changes specified in the Change Request will become part of the Schedule of Work and will apply only to such Schedule of Work. The provisions set forth in the accepted Change Request shall prevail over those set forth in the Schedule of Work to which it relates and those set forth in all prior and related Change Requests. Any new purchase or renewals of existing Services is subject to Provider’s then current Services Agreement.

4. Payment and Fees

The Customer agrees to pay the Provider the fees set out in the accepted Services Agreement. Except as otherwise specified, Provider shall invoice fees twice a month (15th and end of month). Payments are due thirty (30) days from date of each invoice. All payments made to Provider by Customer are non-refundable. All fees or charges are invoiced in the currency of the country in which the Customer is headquartered. The Customer shall pay all applicable taxes. Applicable taxes are not included, except where explicitly noted in Provider’s pricing, but shall be included in all invoices to Customer. Unpaid amounts on invoices over 45 days will be considered delinquent accounts and shall bear interest at the rate of 1.5% per month compounded monthly (19.6% per annum) until fully paid, or the maximum amount permitted by applicable law, whichever is less. If Customer is a delinquent account, Provider may refuse access by Customer to any Services completed and/or in progress until fully paid for. In the event the Customer fails to make any payments owing hereunder, until any and all outstanding accounts are paid in full, including applicable interest, the Provider shall have no further obligation to provide Services to Customer.

5. Termination

(a) Customer may terminate this Services Agreement and/or any engaged Services upon at least thirty (30) days written notice to Provider for any reason. Provider shall deliver all Services that Provider has received payment for within ten (10) days of the termination date. Provider may terminate this Services Agreement and/or any engaged Services at any time in the event Customer breaches any obligation hereunder, fails to act on or provide feedback or materials for engaged Services for a period of thirty (30) days, or upon thirty (30) days prior written notice. Provider and Customer may terminate this Services Agreement and/or any engaged Services immediately by written consent of both parties. Either party may terminate immediately if the other party becomes bankrupt or if trustee in bankruptcy is appointed for that party.

(b) Effect of Termination. Customer will not receive any refund for payments already made or invoiced as of the date of termination. Termination shall not relieve the Customer of their obligation to pay all fees and amounts incurred prior to such termination. Upon termination all obligations of Provider set out herein shall cease. If termination of this Services Agreement is due to Customer’s default hereunder, Customer shall bear all costs of such termination, including any reasonable costs Provider incurs in closing Customer’s account. Customer agrees to pay any and all costs incurred by Provider in enforcing Customer’s compliance with this Section 5, including but not limited to, collection fees, arbitration fees and Provider’s time. In addition to the terms set forth herein, certain Services may have additional terms regarding termination, which are set forth in the applicable Appendices.

(c) Re-engaging Services. Provider reserves the right to allow Customer to re-engage in Provider’s Services after a Services Agreement and/or any engaged Services has been terminated for any reason. Provider reserves the right to re-quote terminated Services. Re-engagement of Services will be scheduled by Provider in accordance to work load at that time. Provider makes no claims or assurance of the ability to re-engage Services.

6. Confidentiality

During the course of this Services Agreement, the Customer and Provider may have access to each other’s information that (a) relates to past, present, or future research, development, or business activities; (b) relates to proprietary products, materials, services, trade secrets, or technical knowledge; (c) existing or contemplated products, services, technology, techniques, methodologies, processes, concepts, and any information related thereto and; (d) is regarded as, or which a reasonable person would treat as, confidential (“Confidential Information”). In connection therewith, the following shall apply and, for convenience, the “Receiving Party” will be the party receiving the Confidential Information and the “Disclosing Party” will be the party disclosing the Confidential Information: The Receiving Party will not, at any time, without the prior written consent of the Disclosing Party, use Confidential Information in any fashion, form, or manner, except to perform the Services hereunder. The Receiving Party will protect the confidentiality of Confidential Information in the same manner that it protects its own confidential information, but in any event, with not less than a reasonable degree of care. Access to Confidential Information shall be restricted to the Receiving Party’s personnel. The Receiving Party agrees to hold such Confidential Information in trust and confidence and not to disclose such Confidential Information to any person, firm or enterprise, or use any such Confidential Information for its own benefit or the benefit of any other party, unless authorized by the Disclosing Party in writing. Unless otherwise expressly agreed in writing by the Disclosing Party, all Confidential Information made available to the Receiving Party, including copies thereof, will be returned to the Disclosing Party upon the first to occur of (a) termination or expiration of this Services Agreement; or (b) request by the Disclosing Party. The confidentiality obligations contained in this Section 6, shall not apply to information that the Receiving Party can demonstrate through written documentation (a) was in Receiving Party’s possession at the time of disclosure and without any restriction as to confidentiality; (b) at the time of disclosure was generally available to the public, or after disclosure becomes generally available through no breach of agreement or other wrongful act by the receiving party; (c) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the receiving party and/or; (d) is independently developed by the Receiving Party without regard to the Confidential Information of the other party. In addition, the Receiving Party may disclose that portion of Confidential Information that is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority, provided that the Receiving Party has furnished prompt written notice of such required disclosure and reasonably cooperates with the Disclosing Party, at the Disclosing Party’s cost and expense, in any effort made by the Disclosing Party to seek a protective order or other appropriate protection of its Confidential Information.

7. Ownership

Upon full payment for engaged Services, Provider irrevocably and without limitation assigns, conveys and otherwise transfers to Customer all right, title and interest (including all copyrights, trademarks, patents, trade secrets and other intellectual property rights) for all Services (excluding Services making use of or derived from Provider Tools (Appendix B) and/or any Third Party (Section 8) products) prepared for Customer by Provider in accordance with the terms of this Services Agreement including, but not limited to, graphics files, creative, content, reports, non-source animation files, data files, non-source software product and programs, HTML files and documentation.

Customer agrees that the Provider may showcase any completed Services in any of the Provider’s marketing materials including a limited license to Customer logos exclusively for the purposes of showcasing the Work Product. If applicable, Customer agrees that Provider may put a byline and link on the bottom of Customer’s completed Web site establishing authorship credit and if necessary copyright notice. Provider agrees that the byline and link may be removed at Customer’s request. The Customer grants to the Provider a limited, non-exclusive, non-sublicenseable, royalty-free, worldwide license to use Customer’s trademarks, service marks, trade names, logos or other commercial or product designations (“Marks”) for the purposes of providing the Services purchased and in Customer’s marketing materials in accordance with the Customer’s standard user policies. Title to and ownership of the Customer’s Marks shall remain with the Customer.

8. Third Parties

Customer expressly agrees that any Third Party products, services or offerings as a part of any of the Services provided by Provider shall be used by Customer in accordance with the terms of any relevant Third Party licenses. Customer’s failure to abide by any Third Party license may result in the immediate termination of Services by Provider. Customer acknowledges that Provider may, at its sole discretion, change any Third Party that provides Services under this Services Agreement. In the event that Provider changes a Third Party, Provider may provide Customer with notification of change along with any changes which shall become additional terms and conditions for the purposes of this Services Agreement.

9. Representation and Warranties

Provider agrees and warrants that any Services shall: (a) not infringe the legal rights of any Third Party or any rights of publicity or privacy; (b) not violate any law, statute, ordinance or regulation and; (c) conform to their applicable specifications or criteria set out herein. Provider further warrants that there is no outstanding contract, commitment or agreement to which Provider is a party or legal impediment of any kind known to Provider which conflicts with this Services Agreement or might limit, restrict or impair the rights granted to Customer hereunder.

Customer agrees and warrants that their use of any of the Provider’s Services and the manner in which Customer intends to use such Services does not: (a) directly or indirectly infringe the legal rights of any Third Party or any rights of publicity or privacy, nor; (b) violate any law, statute, ordinance or regulation. Customer further warrants Customer has all requisite power and authority to execute this Services Agreement and to perform Customer’s obligations hereunder.

10. Mutual Indemnification

Customer agrees to indemnify and hold Provider harmless from and against all loss or damage, including reasonable attorneys’ fees, costs and expenses incurred by Provider as a result of any claims related to or arising out of Provider’s performance of its duties hereunder, unless such loss or damage shall arise from Provider’s failure to perform its duties under this Agreement with reasonable care. Provider agrees to indemnify and hold Customer harmless from and against all loss or damage, including reasonable attorneys’ fees, costs and expenses incurred by Customer as a result of any claims related to or arising out of Provider’s failure to perform its duties under this Agreement with reasonable care, unless such loss or damage shall arise from the negligent or intentional acts or omissions of Customer. In the foregoing sentence, the words “loss or damage” include, but are not limited to, loss or damage arising arising out of (a) this Services Agreement or the breach of Customer’s warranties, representations and obligations under this Services Agreement; (b) Provider’s Services or Customer’s use of such Services, including without limitation infringement or dilution by Customer, or someone else using Provider’s Services through Customer’s account; (c) any intellectual property or other proprietary right of any person or entity; (d) a violation of any rules or policies set out by Provider relating to the Services provided; (e) any information or data Customer supplied to Provider and/or; (f) any actions or omissions of any employee or authorized representative of either party. The terms of this paragraph will survive any termination or cancellation of this Services Agreement.

11. Exclusive Remedy

Customer agrees that Provider’s entire liability, and Customer’s exclusive remedy, in law, in equity, or otherwise, with respect to any Services provided under this Services Agreement and/or for any breach of this Services Agreement is solely limited to the amount Customer paid for such Services during the term of this Services Agreement. In no event shall Provider, its licensors and/or contractors including, but not limited to, third parties providing Services as part of the Schedule of Work or this Services Agreement be liable for any indirect, incidental, special or consequential damages even if Provider has been advised of the possibility of such damages. Provider disclaims any and all loss or liability resulting from, but not limited to: (a) loss or liability from Customer’s inability to use Provider’s products, or any component of the Services delivered; (b) loss or liability resulting from the unauthorized use or misuse of Customer’s passwords for Cheeky Monkey accounts; (c) loss or liability resulting from errors, omissions, or misstatements in any and all information or Services provided under this Services Agreement; (d) loss or liability relating to limitations, incompatibilities, defects, or other problems inherent in Web related mediums not under Provider’s sole control and; (e) loss or liability resulting from acts of God. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Services Agreement or any of our Services must be filed within one hundred and twenty (120) days after such claim or cause of action arises or such claim shall be forever barred.

12. Severability

If any term or provision of this Services Agreement is found by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of this Services Agreement. Such terms or provisions will be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.

13. Assignment and Resale

Except as otherwise set forth herein, Customer’s rights under this Services Agreement are not assignable or transferable. Any attempt by Customer’s creditors to obtain an interest in Customer’s rights under this Services Agreement, whether by attachment, levy, garnishment or otherwise, renders this Services Agreement voidable at Provider’s option. Customer agrees not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) unless indicated within the Schedules of Work.

14. Force Majeure

Neither Provider or Customer be deemed in default hereunder, nor shall it hold the other party responsible for any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over Provider, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, provincial or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this Section 14 (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section 14 extends for a period in excess of thirty (30) days in the aggregate, Provider may immediately terminate this Services Agreement.

15. Governing Law

This Services Agreement will be governed and construed in accordance with the laws of the Province of British Columbia without giving effect to principles of conflict of laws. Both Customer and Provider agree to submit to jurisdiction in British Columbia, Canada. Provider shall ensure that the Services provided to the Customer by Provider comply with all applicable international, national, state, provincial, and local laws and regulations.

16. Headings

The section headings appearing in this Services Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.

17. Arbitration

Any disputes arising out of this Services Agreement shall be subject to good faith negotiations, followed by mediation, then arbitration. Disputes requiring arbitration shall be submitted pursuant to the rules of the BC Arbitration and Mediation Institute, 1628 West 7th Avenue, Vancouver, British Columbia (www.amibc.org). The Arbitrator’s award shall be final and judgment may be entered in any court having jurisdiction over this Services Agreement.

18. Survival

All sections of this Agreement, including but not limited to Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16,17, 18 and 19, which by their nature endure beyond the completion or termination of this Services Agreement shall remain in force, and shall explicitly survive termination and expiration of this Services Agreement.

19. Complete Services Agreement

This Services Agreement, including but not limited to Schedules of Work, Change Requests and any other Exhibits, Forms or attachments hereto, together set forth the entire understanding and agreement between Provider and Customer and supersedes all prior agreements, arrangements, and communications, whether oral or written, with respect to the subject matter hereof. No other agreements, representations, warranties, or other matters, whether oral or written, shall be deemed to bind Provider and Customer entering into this Services Agreement solely on the basis of the agreements and representation contained therein.

 

Appendix A: Provider Tools

In addition to the terms and conditions in the Services Agreement and other applicable Services documents, the following additional terms and conditions shall apply to any and all purchases of Provider Tools, as defined in this Appendix B.

 

1. Description of Provider Tools

Provider has and continues to build a variety of pre-made tools and software source code including, but not limited to: Web site content management tools; ecommerce tools and related components; mailing tools; and collaboration tools.

Provider may offer Services that include software development based on or using Provider Tools with the intention to save time and money in development costs for Customer. Provider reserves the right to add, delete, suspend or modify the terms and conditions of the Provider Tools at any time and to determine if and when any such changes apply to both existing and future customers.

2. License and Proprietary Rights

During the term of this Services Agreement, Customer will have a limited, revocable, and non-exclusive license for Customer to use the Provider Tools, including but not limited to any software and related documentation solely for Customer to provide business related services over the Internet that are consistent with the terms and conditions of this Services Agreement and with applicable provincial, state, federal, or international laws. Customer agrees that Customer and its agents will not: (a) sell, lease, license or sublicense the Provider Tools; (b) modify, change, alter, translate, create derivative works from, reverse- engineer, disassemble or decompile the Provider Tools in any way for any reason; (c) provide, disclose, divulge or make available to, or permit use of the Provider Tools by any third party; (d) copy or reproduce all or any part of the Provider Tools (except as expressly provided for herein); (e) engage in any fraudulent, illegal or unauthorized use of the Provider Tools; (f) knowingly introduce into or transmit through the Provider Tools or any other Services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (g) remove, obscure or alter any copyright notice, trademark or other proprietary rights notice affixed to or contained within the Provider Tools; (h) engage in or allow any action involving the Provider Tools that is inconsistent with the terms and conditions of this Services Agreement; or (i) cause, assist or permit any third party to do any of the foregoing. No right, title or interest of intellectual property or other proprietary rights in and to the Provider Tools and/or other products, services or software made available under this Services Agreement is transferred to Customer hereunder. Provider retains all rights, title and interests, including, without limitation, all copyright, trade secret, intellectual property and other proprietary rights in and to the Provider Tools under this Services Agreement. Copying, resale, licensing or exchange of Provider Tools by Customer is subject to different terms and conditions outside of this Services Agreement.

3. Availability and General Services

Customer acknowledges that since the Internet is neither owned nor controlled by any one entity, Provider makes no guarantees that any given user will be able to access the Provider Tools at any given time. Provider shall not be liable to Customer for failure of accessibility to the Provider Tools or any potential or actual losses that Customer may suffer from Customer’s inability to access or use the Provider Tools or Customer’s customers’ inability to access or use the Provider Tools. Provider provides all Provider Tools and any software related to those Provider Tools to the Customer on an “as is” basis and does not guarantee that the Provider Tools or any related software has no errors, defects or bugs or will function properly. Customer agrees that Provider is not responsible in any way for any malfunction or downtime in the Provider Tools or related software nor for any damage, injury or lost profits that may arise from such malfunction or downtime. Provider makes no guarantee that the Provider Tools that the Customer purchases will operate seamlessly and without error with Customer’s own hardware, software or other services (including third party products) that Customer currently uses. From time to time, and as may be necessary to maintain Provider Tools, Provider reserves the right to take offline for repairs, upgrades or routine maintenance any Services that depend on Provider Tools. Customer agrees and understands that Provider Tools may be dependent on Third Party services Provider cannot control. Customer expressly agrees that the availability of those Third Party services may impact Customer’s Services and therefore does not hold Provider liable for any actions of a Third Party that may adversely impact Customer’s Services.