Terms and Conditions
The terms and conditions set forth below (the “Terms”) govern the relationship between WHYTESPYDER, INC. (“Agent”) and the CLIENT (“Client”) who has agreed to use Agent’s content enhancement products and services.
1. PRODUCTS AND SERVICES
The content enhancement products, data, software, and services selected by Client (the “Services”), as set forth on the order form or contract with Agent (the “Order Form”, and together with these Terms, the “Agreement”), will be furnished by or on behalf of Agent.
2. PAYMENT TERMS
The fee (the “Fee”) for Services provided under the Agreement will be set forth in the Order Form. Agent will invoice client for total amount due within 10 days of signature of agreement. Client shall pay the Fee to Agent within 30 days of receiving an invoice. Unless otherwise set forth in the Order Form, Agent will submit invoices in accordance with its customary practice.
3. TERM AND TERMINATION
The initial term (the “Initial Term”) for Sku Ninja will be 12 months, thereafter automatically renewing month-to-month. Either party may terminate the Agreement with 30-days’ notice. Upon termination, Client shall reimburse Agent for all out-of-pocket costs and expenses incurred by Agent in connection with the Order Form and pay a pro rata portion of the Fee at termination.
4. CONTENT AND DATA
As between Agent and Client, Client shall continue to own and shall have sole control over all content, materials, data or information provided to Agent (the “Input Data”). Client acknowledges that between Agent and Client, Input Data is the responsibility of Client. Client and Agent acknowledge that Agent may combine Input Data with Services to produce and develop content (“Content”). As between Agent and Client, Client will own all Content except for basic content search rank research content (“Proprietary Content”). Agent will retain all right and title to Proprietary Content.
5. INTELLECTUAL PROPERTY
Each party will continue to hold exclusive title to all intellectual property rights, including but not limited to copyright, patent rights, and trademarks (“IP”), that such party held prior to the Agreement. Client acknowledges that Agent may be given a nonexclusive license to use Client’s IP as reasonably necessary to perform Agent’s Services under the Agreement. As between Agent and Client, Client will be entitled to all IP resulting from the Services, except any IP with respect to Proprietary Content. All rights not expressly granted hereunder are reserved solely for Agent. Agent and Client shall take reasonable actions to protect the other’s IP. Client shall not: (i) modify, reverse engineer, disassemble, decompile or store the Services or any portions thereof; (ii) remove or modify any copyright or other proprietary notices relating to the Services, or (iii) create derivative works that are based on any portion of the Services, all rights to which are owned exclusively by Agent.
6. DISCLAIMER OF WARRANTIES
Agent does not represent or guarantee that the Services will be error-free or uninterrupted. ALL SERVICES ARE PROVIDED “AS IS,” AND AGENT HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. AGENT DOES NOT WARRANT THE RESULTS TO BE OBTAINED BY USE OF THE SERVICES. Client shall comply with all laws and assumes all risks of selection and use of the Services. Agent’s sole obligation and Client’s sole remedy for defective Services shall be for Agent, at Agent’s option, to re-perform the defective Services or to refund the amount paid by Client for the defective Services, provided that Client and its agents are not in breach of this Agreement.
7. LIMITATION OF LIABILITIES
IN NO EVENT SHALL AGENT BE LIABLE FOR MONETARY DAMAGES UNDER THE AGREEMENT (REGARDLESS OF THE LEGAL THEORY) IN AN AMOUNT GREATER THAN THE FEES PAID BY CLIENT DURING THE MONTH PRIOR TO THE DATE THAT THE CAUSE OF ACTION IS ALLEGED TO HAVE ARISEN. AGENT WILL NOT BE LIABLE FOR LOSS OF OR DAMAGE TO ANY INPUT DATA, CONTENT, RECORDS OR OTHER DATA; OR FOR CONSEQUENTIAL DAMAGES, LOST PROFITS OR INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. No action or lawsuit may be brought by or on behalf of Client under this Agreement more than one year after the cause of the action has accrued.
Client shall defend, indemnify and hold harmless Agent, its affiliates, and their respective directors, officers, employees and agents (the “Indemnitees”) from and against any and all claims, liabilities, judgments, damages, costs and expenses (including reasonable attorneys’ fees) arising from or relating to (i) any breach of the Agreement by Client; (ii) the misuse or unauthorized use of the Services or any portions thereof by Client; or (iii) the Input Data.
The Agreement shall be governed by the laws of the State of Arkansas. Client consents to the exclusive jurisdiction of Arkansas courts for adjudicating all claims arising out of the Agreement. If Client fails to comply with the Agreement, Agent shall be entitled to recover attorneys’ fees and other out-of-pocket expenses incurred in enforcing the Agreement. The prevailing part in any litigation may recover attorney fees. The Agreement is the complete and entire agreement between the parties with respect to Services. Agent is not responsible or liable for events or circumstances beyond its reasonable control. The Agreement may be modified only in writing. No waiver of any term is a continuing waiver. Client may not assign or transfer this Agreement or any rights hereunder, and any such assignment is null and void. Sections 4, 5, 6, 7, 8 and 9 of these Terms survive termination of the Agreement.