- This Services Agreement (this “Agreement”), effective as of the date hereof (“Effective Date”), is entered into by and between Contellio Limited (“Contellio”) and the person identified as “Client” on the order form or through an order inquiry email (“Client”) (each a “Party” and together, the “Parties”).
- WHEREAS, Contellio provides certain creative digital services, and Client desires to engage Contellio to provide those services to Client in accordance with the provisions of this Agreement.
- NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:
Client has completed an order request form (an “Order Form”), accessed through http://app.contellio.com or www.contellio.com/pilot, pursuant to which Client has requested the creation of certain creative digital services by Contellio (the “Services”) in accordance with the terms of this Agreement. Services may be purchased standalone or as part of a subscription, as indicated by Client on the Order Form. Client will select the format of Services to be provided on the Order Form (i.e. infographic, presentation or animation).
Test Drive Services.
Contellio offers Services at a discounted rate for any first-time purchaser of the applicable format of Services (“Test Drive Services”). In the event Client selects Test Drive Services on an Order Form and Client has previously purchased the relevant format of Services, Contellio will treat the Order Form as if Test Drive Services have not been selected. Client acknowledges and agrees that all Work Product created in connection with the Test Drive Services will include an attribution to Contellio, in a form substantially similar to “this Work Product is powered by Contellio”. Client may not remove such attribution from the Work Product at any time. In the event Contellio learns of any breach of the preceding sentence, Contellio may withdraw Client’s right and license to use the applicable Work Product.
This Agreement is effective as of the Effective Date and will continue in effect until terminated in accordance with Section 7 (the period in which the Agreement is in effect, the “Term”).
In its performance of the Services, Contellio shall act in a professional, competent and workmanlike manner in accordance with generally accepted industry standards and practices, using trained and qualified personnel. Following Client’s acceptance of this Agreement, Contellio shall use commercially reasonable efforts to perform the Services in accordance with the Order Form and deliver the relevant Work Product to Client via http://app.contellio.com within the agreed upon timeframe.
For purposes of this Agreement, “Work Product” means any work product created by Contellio specifically for and delivered to Client pursuant to the Services. All Work Product shall be delivered to Client in an open PDF format.
In its receipt of the Services, Client shall (i) provide Contellio with all information, assistance and materials that Contellio requests from time to time to facilitate the proper and timely performance of the Services, including the applicable blog URL, blog text, and any trademarks or fonts the Client wishes to have incorporated into the Work Product (collectively, the “Client Materials”); (ii) comply with all laws and regulations applicable to Client’s business; and (iii) notify Contellio promptly if Client has reason to believe that any Client Materials infringe the intellectual property rights of any third-party or otherwise could give rise to any claim or action (including for defamation).
As between the Parties, Client is responsible for (i) the accuracy, completeness and propriety of information concerning Client’s organization, products and services and Client’s competitors’ products and services, whether provided to Contellio by or on behalf Client, and (ii) procuring all rights, licenses and permissions to enable (1) Contellio’s use of the Client Materials and (2) Client’s use of any Work Product or other materials provided by Contellio to Client.
To the extent Client is dissatisfied with or wishes to request changes to the Work Product, Client shall notify Contellio no more than five days following receipt of the Work Product explaining in specific detail any errors, deficiencies or inadequacies that it believes should be modified in the Work Product, and Contellio agrees to use commercially reasonable efforts to make such modifications to the Work Product within a commercially reasonable timeframe. In the event Client does not deliver written notice to Contellio regarding requested changes within such five day period, acceptance will be deemed given.
Fees; Payment Options.
Client shall pay fees for the Services in accordance with the terms of this Agreement and as set forth on the Order Form, which payment may be made via credit card.
Client may elect to prepay a retainer amount for future Services in its sole discretion (the “Retainer Payment Option”). All prepaid amounts are non-refundable and must be spent within 12 months of payment. Client may prepay any amount above $500 prior to Client’s receipt of Services and will receive a bonus from Contellio for all prepaid amounts equal to or above $2,000. Bonus payments are calculated as follows:
|Client’s Prepaid Amount ||+ ||Contellio Bonus ||= ||Client’s Prepaid Total||$2,000||5%||$2,100
Thereafter, all bonus payments increase by increments of 2% with a maximum bonus amount of 48%.
Client may elect to purchase a monthly subscription for Services in its sole discretion (the “Subscription Payment Option”). If Client so elects, Contellio and Client will agree upon: (a) Services to be provided per month; (b) monthly fees; and (c) the subscription term, which may be no less than 3 months. Subscriptions will automatically renew for subsequent subscription periods of equal length unless Client terminates the subscription upon 30 days’ notice to Contellio. Subscription payments will be made automatically on the first day of the subscription month (i.e. if the subscription is purchased on February 14th, Client will be charged on February 14th, March 14th, etc.).
To the extent Client does not elect the Retainer Payment Option or Subscription Payment Option, Contellio shall invoice Client for all fees due and payable in connection with the Work Product upon Client’s receipt and acceptance of the Work Product. Client shall pay amounts due on each invoice within 30 days after receiving the invoice.
Unless otherwise agreed to by the Parties, all amounts must be paid in U.S. dollars and are not subject to any deductions, credits or other set-offs. Any fees not paid when due will bear interest from the original due date until paid at a rate equal to the prime interest rate (as quoted in the Wall Street Journal) plus 2%.
All fees payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is 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 or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Contellio’s net income.
Client shall pay or reimburse Contellio for US sales and use taxes (“Transaction Taxes”) that Contellio is required to collect on the sale of Services sold to Client under this Agreement, it being understood that this obligation is without prejudice to any statutory obligation that either party may owe to a taxing authority. In the event that Contellio is subject to audit by any taxing authority and Contellio shall not have collected Transaction Taxes from Client, Client shall provide Contellio with documentary evidence that Contellio has paid the Transaction Taxes to the relevant taxing authority. Contellio is hereby authorized to share such documentary evidence with relevant taxing authorities.
Upon Client’s payment in full of all fees set forth in an Order Form, Contellio hereby grants to Client a perpetual, irrevocable, non-exclusive, worldwide, paid-up, royalty-free license to use any of the Work Product, including the right to make or use derivative works created therefrom.
A Party may terminate this Agreement at any time by providing notice of termination to the other Party (the “Breaching Party”) if the Breaching Party commits a material breach of this Agreement, and the breach continues unremedied for a period of 30 days after the Party provides notice to the Breaching Party describing the nature of the breach. A Party may terminate the Order Form at any time by providing notice of termination to the Breaching Party if the Breaching Party commits a material breach of that Order Form, and the breach continues unremedied for a period of 30 days after the Party provides notice to the Breaching Party describing the nature of the breach. Notwithstanding the foregoing, Contellio may terminate this Agreement and/or any Order Form at any time by providing notice of termination to Client if Client fails to pay any invoice within 45 days of receipt of that invoice.
A Party may terminate this Agreement and/or any Order Form at any time by providing notice of termination to the other Party if that other Party (i) becomes insolvent or unable to pay its debts as they mature; (ii) makes an assignment for the benefit of its creditors; (iii) is dissolved or liquidated, or takes any corporate action for those purposes; (iv) has 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; or (v) seeks relief or if proceedings are commenced against that other Party, or on its behalf, under any bankruptcy, insolvency or debtors’ relief law and those proceedings have not been fully stayed within seven days or vacated or set aside within 30 days after the commencement of those proceedings.
Upon any termination of this Agreement, Client shall promptly pay to Contellio any amounts due under this Agreement. Client acknowledges that termination of this Agreement creates no obligation for Contellio to refund any amounts paid or payable by Contellio under this Agreement for Services provided by Contellio. Sections 5, 7, 8, 10, 11, and 13-24 survive any termination of this Agreement.
Each Party shall maintain in confidence any confidential information it obtains from the other Party in connection with this Agreement and may not use or disclose that information except to the extent necessary to exercise its rights or perform its obligations under this Agreement. The restrictions in the foregoing sentence do not apply to information that (i) the receiving Party (“Recipient”) rightfully possessed without a duty of confidentiality before obtaining it from the disclosing Party or its affiliates (“Discloser”); (ii) is or becomes generally available to and known by the public, other than due to Recipient’s breach of this Agreement; (iii) Recipient received on an unrestricted basis from a source unrelated to either Party and not under a duty of confidentiality with respect to the information; or (iv) Recipient developed independently of the disclosed information.
Recipient shall, to the extent permitted by law, (i) notify Discloser within three calendar days if applicable law requires, or a governmental authority of competent jurisdiction requires or requests, that Recipient disclose Discloser’s confidential information and (ii) use reasonable efforts to allow Discloser an opportunity to seek injunctive relief from, or a protective order with respect to, the contemplated disclosure. If notification to Discloser is not permitted by applicable law, or if it is permitted and that relief or order is not obtained, Recipient (1) may disclose only that portion of Discloser’s confidential information that Recipient’s counsel advises is not subject to privilege and must be disclosed, and (2) shall cooperate with Discloser to the extent permitted by applicable law to ensure the disclosed confidential information is treated in a confidential manner after disclosure.
Each Party’s obligations under this Section 8 regarding the other Party’s confidential information terminate two years after the end of the Term. If a provision in this Agreement conflicts with a provision in any non-disclosure agreement, confidentiality agreement or similar agreement between the Parties, the provision in this Agreement governs to the extent of the conflict.
Notwithstanding anything to the contrary in this Agreement, Contellio may identify Client in any list of clients used by Contellio for its own promotional purposes.
Mutual Representations and Warranties.
Each Party represents and warrants that (i) it is duly organized and in good standing under the laws of the jurisdiction of its organization; (ii) it has all requisite power and authority (corporate or otherwise) to execute, deliver and perform its obligations under this Agreement; and (iii) its execution, delivery and performance of this Agreement (1) have been duly authorized by all necessary action on its part and (2) do not and will not: (A) violate, conflict with or result in the breach of any provision of its charter or by-laws (or similar organizational documents); or (B) conflict with, result in any breach of, constitute a default (or event which with the giving of notice and/or lapse of time would become a default) or require any consent under, or give any other person any right to terminate, amend, accelerate, suspend, revoke or cancel, any other agreement to which it is a party or by which it is bound.
Contellio’s Representations and Warranties.
Contellio represents and warrants that none of the Services or Work Product or use thereof infringe or will infringe any intellectual property rights of any third-party, excluding any infringement or claim, litigation or other proceedings to the extent arising out of any Client Materials or any instruction, information, designs, specifications or other materials provided by Client to Contellio.
Client’s Representations and Warranties.
Client represents and warrants that Contellio’s use of the Client Materials will not infringe any intellectual property rights of any third-party, and there is no claim or action pending or threatened against Client or its affiliates alleging any of the foregoing.
Disclaimer; Limitation of Liability.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9, THE SERVICES AND THE WORK PRODUCT ARE PROVIDED “AS IS” AND CONTELLIO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND CONTELLIO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY NOR ITS AFFILIATES, NOR ITS OR THEIR PERSONNEL, PARTNERS, SHAREHOLDERS, SUCCESSORS OR ASSIGNEES, WILL HAVE ANY LIABILITY OR RESPONSIBILITY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, REGARDLESS OF HOW CHARACTERIZED) WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, AND WHETHER THE CLAIM ARISES OUT OF BREACH OF CONTRACT, TORT OR OTHERWISE.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S LIABILITY WITH RESPECT TO SERVICES OR THE WORK PRODUCT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED TWO TIMES THE TOTAL FEES PAID OR PAYABLE BY CLIENT TO CONTELLIO UNDER THIS AGREEMENT.
Client shall indemnify and defend Contellio and its affiliates, and its and their personnel, partners, shareholders, successors and assignees from and against any and all damages, expenses (including attorneys’ fees and court costs), losses, liabilities, obligations, claims, demands, suits, actions, investigations, proceedings, and causes of action (collectively, “Losses”) arising out of or relating to any third-party claim to the extent the claim arises out of or relates to (a) Client’s use of the Services or Work Product in combination with materials, software, intellectual property or services not furnished or approved by Contellio, (b) any breach of this Agreement by Client, (c) any change to the Work Product, (d) Contellio’s use of any Client Materials, and (e) Services performed or Work Product created in accordance with specifications or requirements mandated by Client.
Force Majeure. To the extent either Party fails to perform any of its obligations under this Agreement as a result of a fire, flood, earthquake, act of God, or act of war, revolution or terrorism (each, a “Force Majeure Event”), and that Party (the “Affected Party”) could not have taken reasonable precautions to avoid the Force Majeure Event, the Affected Party will be excused from performing those obligations affected by the Force Majeure Event for the duration of the Force Majeure Event, on condition that the Affected Party must continue to use commercially reasonable efforts to avoid or remove the Force Majeure Event as soon as possible. The Affected Party shall promptly notify the other Party of the occurrence of any Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event. If a Force Majeure Event continues for a period longer than two months, either Party may terminate the Agreement with immediate effect on written notice to the other Party and neither Party is liable to the other Party for such termination.
Client may not assign, delegate or otherwise transfer this Agreement or any of its rights, remedies or obligations under this Agreement (including by forward or reverse merger, consolidation, dissolution or operation of law, and whether voluntarily or by a governmental authority’s action or order) without Contellio’s prior written consent. Any purported assignment, delegation or other transfer in contravention of this Section is void. Contellio in its sole discretion may assign (e.g., to a subcontractor), delegate or transfer this Agreement or any of its rights, remedies or obligations under this Agreement. This Agreement binds and inures to the benefit of the Parties and their respective permitted assignees and successors.
This Agreement constitutes the entire agreement, and supersedes any prior or contemporaneous statements or agreements, between the Parties with respect to its subject matter.
If a governmental authority of competent jurisdiction holds any provision of this Agreement to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Section, all other provisions of this Agreement are to remain in effect as written, except that this entire Agreement will be unenforceable if modifying or disregarding the unenforceable provision affects the economic and legal substance of the transactions contemplated by this Agreement in a manner materially adverse to either Party.
This Agreement only may be amended or modified by a written instrument signed by each Party’s authorized representative referring to this Agreement, including through e-mails or similar electronic transmissions where both Parties explicitly agree to the amendment/modification.
This Agreement (including this Section), any dispute, claim or controversy between the Parties arising out of or relating to this Agreement, whether in contract, tort or otherwise, and the Parties’ rights and obligations under this Agreement, are to be construed in accordance with and governed by the laws of the State of New York applicable to agreements made and to be wholly performed in that state by persons residing or having their principal places of business therein, without giving effect to the State of New York’s conflict of laws rules to the extent those rules would require applying another jurisdiction’s laws. The Parties may commence an action, suit or proceeding arising out of or relating to this Agreement only in, and hereby consent to the exclusive jurisdiction of, the federal and state courts located in the County of New York within the State of New York.
The Parties acknowledge that the provisions of this Agreement are the language the Parties chose to express their mutual intent and hereby waive any applicable law that would require interpretation of any claimed ambiguity, omission or conflict in this Agreement against the Party that drafted it.
The descriptive headings in this Agreement are for convenience and are not intended to affect its meaning or interpretation. The words “including,” “include,” and “includes” are not limiting and are to be read as if they were followed by the phrase “without limitation.” “Commercially reasonable efforts” means, with respect to a given obligation, the efforts that a reasonable and prudent person desirous of achieving a result would use in similar circumstances to perform that obligation as promptly as possible consistent with its normal business practices and good-faith business judgment, including the incurrence of reasonable immaterial expenditures or liabilities. “Sole discretion” means, with respect to any determination to be made under this Agreement by a Party, the sole and absolute discretion of that Party, without regard to any standard of reasonableness or other standard by which the determination of that Party might be challenged.
Except to the extent stated otherwise in this Agreement, nothing in this Agreement confers any legal or equitable right, benefit or remedy upon any person other than the Parties.
A Party’s failure to enforce any provisions of or rights deriving from this Agreement does not waive those provisions or rights, or that Party’s right to enforce those provisions or rights. Except to the extent stated otherwise in this Agreement, each Party’s rights and remedies under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity.
Both Parties are independent contractors under this Agreement. Nothing herein creates an employment, agency, joint venture or partnership relationship between the Parties hereto or any of their personnel, or any other legal arrangement that would impose liability upon one Party for the act or failure to act of the other Party. Neither Party shall have any express or implied power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other Party, or to bind the other Party in any respect whatsoever.
All notices, requests, claims and other communications between the Parties described in or otherwise regarding this Agreement must be in writing and be given or made (and will be effective on receipt) by e-mail (with a telephonic acknowledgement of sending), or by registered or certified mail (postage prepaid, return receipt requested) to a Party at its address below or at any other address of which that Party has notified the other Party in accordance with this Section, except that any email received after 5:00 p.m. at the location of receipt will be deemed received on the immediately following business day).
The Parties may execute this Agreement in one or more counterparts, each of which when executed is an original counterpart and all of which taken together constitute one and the same Agreement. A Party’s delivery to the other Party of an original counterpart to this Agreement in accordance with Section 24, or as a scanned image (such as a .pdf file) attached to an email to the other Party’s authorized representative, is effective as delivery of that counterpart.