This Services Agreement (this “Agreement”), dated as of user account creation (“Effective Date”), is by and between Kwac Media Solutions Inc, a Florida corporation, with offices located at 2432 Royal Palm Ave, Miami Beach, FL 33140 (”Service Provider”) and The User (”Customer” and together with Service Provider, the “Parties”, and each a “Party”). WHEREAS, Service Provider has the capability and capacity to provide certain website design, hosting, analytics and update services; and WHEREAS, Customer desires to retain Service Provider to provide the said services, and Service Provider is willing to perform such services under the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Service Provider and Customer agree as follows:
Service Provider shall provide to Customer the services (the “Services”) set out in one or more statements of work to be issued by Customer and accepted by Service Provider (each, a “Statement of Work”). The initial accepted Statement of Work is attached hereto as Exhibit A. Additional Statements of Work shall be deemed issued and accepted only if signed by the Service Provider Contract Manager and the Customer Contract Manager, appointed pursuant to Section 2.1(a) and Section 3.1, respectively. The details of the method and manner for performance of the Services by the Service Provider shall be under its own control, Customer being interested only in the results thereof.
2. Service Provider Obligations.
Service Provider shall:
2.1 Designate employees or contractors that it determines, in its sole discretion, to be capable of filling the following
(a) A primary contact to act as its authorized representative with respect to all matters pertaining to this
Agreement (the “Service Provider Contract Manager”).
(b) A number of employees or agents that it deems sufficient to perform the Services set out in each
Statement of Work, (collectively, with the Service Provider Contract Manager, “Provider Representatives”).
2.2 Make no changes in Provider Representatives except:
(a) Upon the resignation, termination, death, or disability of an existing Provider Representative.
(b) At the reasonable request of Customer, in which case Service Provider shall use reasonable efforts to appoint
a replacement at the earliest time it determines to be commercially viable.
3. Customer Obligations.
3.1 Designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act
as its authorized representative with respect to matters pertaining to this Agreement (the “Customer Contract Manager”),
with such designation to remain in force unless and until a successor Customer Contract Manager is appointed.
3.2 Require that the Customer Contract Manager respond promptly to any reasonable requests from Service Provider
for instructions, information, or approvals required by Service Provider to provide the Services.
3.3 Cooperate with Service Provider in its performance of the Services and provide access to any information relating
to the Customer’s website as required to enable Service Provider to provide the Services.
3.4 Take all steps necessary, including obtaining any required licenses or consents, including but not limited to
copyrights and trademarks, to prevent Customer-caused delays in Service Provider’s provision of the Services.
4. Fees and Expenses.
4.1 In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under
this Agreement, Customer shall pay the fees set out in the applicable Statement of Work. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this Section 4 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable Statement of Work, said fee will be payable
within 10 days of receipt by the Customer of an invoice from Service Provider but in no event more than 30 days after
completion of the Services performed pursuant to the applicable Statement of Work.
4.2 Customer shall reimburse Service Provider for all reasonable expenses incurred in accordance with the Statement
of Work within 10 days of receipt by the Customer of an invoice from Service Provider accompanied by receipts and
reasonable supporting documentation.
4.3 Customer 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 Customer hereunder; provided, that in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Service Provider’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
4.4 Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and
compounded monthly. Customer shall also reimburse Service Provider for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this
Agreement or at law (which Service Provider does not waive by the exercise of any rights hereunder), Service Provider
shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof.
5. Limited Warranty and Limitation of Liability.
5.1 Service Provider warrants that it shall perform the Services:
(a) In accordance with the terms and subject to the conditions set out in the respective Statement of Work and
(b) Using personnel of commercially reasonable skill, experience, and qualifications.
(c) In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards
for similar services.
5.2 Service Provider’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be Service Provider shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Service Provider cannot cure such breach within a reasonable time (but no more than 30 days) after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 8.2.
5.3 SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 5.1, ABOVE.
ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
6. Intellectual Property.
All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services, including any items identified as such in the Statement of Work (collectively, the “Deliverables”) shall be owned by Service Provider. Service Provider hereby grants Customer a licens to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services, provided that Customer does not breach any terms and conditions of this Agreement.
From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within 14 days thereafter, is summarized in writing and confirmed as confidential (”Confidential Information”); provided, however, that Confidential Information does not include any information that:
(a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7;
(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 in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or
(d) was or is independently developed by Receiving Party without using any Confidential Information. 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, or permit it to be accessed or used, 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 or entity, except to the Receiving Party’s Group who 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. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
For purposes of this Section 7 and Section 8.4 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates
and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent
contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
8. Term, Termination, and Survival.
8.1 This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the
Services under all Statements of Work, unless sooner terminated pursuant to Section 8.2 or Section 8.3.
8.2 Either Party may terminate this Agreement, effective upon 30 day written notice to the other Party (the “Defaulting
Party”), if the Defaulting Party:
(a) Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material
breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach.
(b) Becomes insolvent or admits its inability to pay its debts generally as they become due.
(c) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or
insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after
(d) Is dissolved or liquidated or takes any corporate action for such purpose.
(e) Makes a general assignment for the benefit of creditors.
(f) 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.
8.3 Notwithstanding anything to the contrary in Section 8.2(a), Service Provider may terminate this Agreement before
the expiration date of the Term on written notice to Customer for any reason in its sole discretion.
8.4 The rights and obligations of the parties set forth in this Section 8.4 and in Sections 4, 5, 6, 7, 9, 18, 19 and 20 and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement, and with respect to Confidential Information that constitutes a trade secret under applicable law, the rights and obligations set forth in Section 7 hereof will survive such termination or expiration of this Agreement until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Receiving Party or the Receiving Party’s Group.
9. Limitation of Liability.
9.1 IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY
LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING
OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF
WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED
OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 IN NO EVENT SHALL SERVICE PROVIDER’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, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE
PROVIDER PURSUANT TO THIS AGREEMENT.
10. Entire Agreement.
This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.
All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, 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) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 13.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be 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.
No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized representative of each Party.
No waiver by any Party of any of the provisions of this Agreement 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 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.
Customer shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement, including by virtue of any merger or corporate reorganization which may be deemed an assignment, without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section 16 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations
under this Agreement. Service Provider may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Service Provider’s assets without Customer’s consent.
16. Successors and Assigns.
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
17. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement 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.
3432 Royal Palm Ave, Miami Beach, FL 33140
Chaim Kitchner – CTO
18. No Third-Party Beneficiaries.
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 or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
19. Choice of Law.
This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Florida, 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 Florida.
20. Choice of Forum.
Each Party irrevocably and unconditionally agrees that it will not 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 all contemplated transactions, in any forum other than the US District Court for the Southern District of Florida or the courts of the State of Florida sitting in Miami-Dade County, and any appellate court from any 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 US District Court for the Southern District of Florida or the courts of the State of Florida sitting in Miami-Dade County. Each Party agrees that 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.
21. WAIVER OF JURY TRIAL.
EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 12, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
23. Force Majeure.
The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’
workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 45 days, Customer shall be entitled to give notice in writing to Service Provider to terminate this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date by their
respective duly authorized officers.
INITIAL STATEMENT OF WORK
Kwac Media will provide client the following program in conjunction to the stated service
1. Website Design consists of template page* design as well as content pages*. Web site design is completed
when The Client approves the website and it is deployed to server for public use. Website design is issued
to The Client exclusively at the commencement of this agreement and available for The Client upon
renewal of agreement should The Client request it.
2. Hosting Services are rendered to The Client by the Developer or by a third party hosting company engaged
by the Developer. Where the web site is hosted by a third party hosting company all terms and conditions
for hosting, including any service level agreement will mirror (but not exceed) those offered by the hosting
company. The Developer will communicate such terms to The Client. The Developer will not be liable for
hosting errors caused by the hosting company or downtime experienced by the hosting company. Where a
third party hosting company is used the company may schedule regular maintenance of the server or
servers and this may affect the hosting and availability of the Project web site. Such maintenance is
necessary for the smooth running of the web site. Where possible such maintenance will be carried out
when the web site is not busy.
3. Security will be provided with best practices and industry standards. Developer agrees to conduct due
diligence in ensuring the website and server are up to security standards but accepts no liability in the
event of a security breach.
4. Updates and maintenance are defined as regular changes to copy and images of existing pages and
creation of Content Pages based on existing design Pages. All changes, edits to existing copy, new copy
and images must be provided by The Client. Excluded in Updates and Maintenance is: Regular Blog posts,
adding of products to e-commerce stores, copywriting, and procurement of images. Developer is not
responsible to draft copy or provide images to facilitate updates although stock imagery may be provided at
Developer’s discretion. The adding of plug-ins, databases or other dynamic functions to the website are not
included as updates in this agreement, although they may be added at Developer’s discretion.
5. Google Analytics will be set up for The Client by Developer for use. This is limited to the set up of tracking
accounts and insertion of standard page-view tracking tags.Developer does not provide analytics data
interpretation or monitoring services beyond set up of tracking systems.
6. E-Commerce; where the E-commerce package is selected, sites will be set up using woo commerce
systems. Developer does not guarantee the function or security of third plug ins or add ons beyond the
standard woo commerce system, and cannot be held liable for damages or security breach as a result of
their use. Developer will aid The Client in setting up payment gateway but it is ultimately the responsibility
of The Client to choose and set up payment processing. Developer agrees to set up web store for The
Client and instruct them on proper and general use but makes no commitment to general ongoing
management of web store.
7. 3.7 Content Management Systems (CMS) such as WordPress; In the event a CMS is used, Developer
does not guarantee the functions or security of third party plug ins or add ons beyond the standard
Wordpress system and cannot be held liable for damages or security breach as a result of their use.
8. Stock imagery will be provided for use on website exclusively. Images will be licensed by Developer from
shutterstock.com or other licensed sites which places restrictions on use such as reproduction and selling
as product or part of a product. Please refer to Shutterstock License Agreement – Part I, a. Available at:
https://www.shutterstock.com/license for more details on licensing.
2. MAINTENANCE FEES
1. The Client will pay the agreed fees to the Developer on start date of the Project.
2. The Client will pay the agreed monthly fees to the Developer for hosting and maintenance of the web site
in the amount of $100.00 per month. The Developer will invoice the Client and the Client will pay the invoice. Where both parties agree a monthly direct debit can be setup by the Client to pay for the hosting
and maintenance. The monthly fee shall be charged irrespective of whether the Client submits any
requests for changes to the web site that would constitute maintenance.
1. Upon expiration of this agreement unless otherwise specified by The Client; Developer will continue billing
and charging monthly at the regular rate, unless otherwise specified by the Client.
2. In the event that Client wants to discontinue service after expiration of agreement, The Client may choose
to license the website for their use for a release fee of $600 if after initial 12 month term.
3. Where client elects to license website before initial 12 month term; client must pay the licensing fee of $600
plus the sum of the remaining monthly fees of the initial 12 month term.
*Template Page – is a file containing the structure and design to be used as template for content pages. This page
serves as a container with which to fill content to create Content Pages.Content Page – is a file page based created
on Template Page file and filled with variable content provided by client.
“Content Page” – is a file page based created on Template Page file and filled with variable content provided by client.