SERVICES
DigiClimber hereby agrees to perform all of the services set forth herein and in that certain Statement of Work attached hereto as Exhibit A, and any other statements of work mutually agreed to and manually executed by the parties (collectively, the “Statement of Work”) for certain services as more particularly described therein (the “Services”). If any term or condition in the Statement of Work conflicts in any way with the terms and conditions set forth in this Agreement, the terms and conditions of this Agreement will control, provided, however, that provisions of the applicable Statement of Work will prevail over any provisions of this Agreement which are expressly referred to in the Statement of Work.
PAYMENT
Client shall pay DigiClimber all amounts set out in the Statement of Work (“Fees”) by credit card (or such other method of payment as may be agreed to by Client and DigiClimber) on a monthly, quarterly, annual, or other basis, as may be agreed to by Client and DigiClimber (the “Billing Cycle”). Payment of Fees shall be made in advance of the Services being performed and is due at the start of each Billing Cycle. Fees are subject to changes from time to time at the sole discretion of DigiClimber, which changes may be made at the end of a Billing Cycle with thirty (30) days’ notice to Client. Client is solely responsible for paying directly to any third party provider (e.g., Google) for any advertising costs and fees as per the monthly budget set out in the Statement of Work, which budget may be amended from time to time by Client with notice to DigiClimber.
CONFIDENTIALITY
During the term of this Agreement and at any time after the termination of this Agreement, each party will keep in strict confidence all information obtained, developed, accessed, disclosed or acquired in connection with this Agreement or the performance of the Services (collectively, the “Confidential Information”). The Confidential Information will be used for no purpose other than to perform the Services. Neither party will disclose Confidential Information without the other party’s prior written consent, except that each party will be permitted to disclose Confidential Information (a) to its affiliates, lawyers, accountants, auditors, managers, representatives, contractors and consultants who have a need to know the Confidential Information in furtherance of the purpose set forth in this Agreement (collectively, the “Representatives”), or (b) to the extent required by applicable law or court order. Notwithstanding the foregoing, information furnished or made available by or on behalf of either party will not constitute Confidential Information if such information: (a) is rightfully in the recipient’s possession before receipt from the disclosing party without violating the recipient’s or any of its Representative’s obligations hereunder; (b) is or becomes generally available to the public other than as a result of a violation of this Agreement; (c) is received by the recipient from a source (other than the disclosing party) not bound, to the actual knowledge of recipient or its Representatives, by any obligation prohibiting or limiting the disclosure of such information; or (d) is independently developed by the recipient or its Representatives without any use of or reference to the Confidential Information.
TERM
Client may terminate this Agreement at any time with immediate effect upon providing at least three (3) days’ written notice to DigiClimber. DigiClimber may terminate this Agreement (i) at any time upon providing at least ten (10) days’ written notice to Client, or (ii) with immediate effect in the event of a breach by Client of its obligations under this Agreement which is not cured within three (3) days of its receipt of written notice thereof. Upon any such termination, Client will immediately pay DigiClimber for Services performed and expenses incurred pursuant to this Agreement or Statement of Work, as the case may be, as of the date of such termination, less the aggregate of previous payments, allocable to any Services completed and incurred expenses as of the date of such termination. Any prepaid Fees are non-refundable.
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
Client acknowledges DigiClimber makes no representations, warranties or conditions of any nature, express or implied, statutory or otherwise, respecting the services, including but not limited to, guarantees of increase in client’s revenue, profit, business or opportunities as a result of DigiClimber’ performance of the services, any non-infringement, merchantability or fitness for a particular purpose or from a course of dealing or usage of trade. The liability of either party for any breach of this agreement or otherwise from any acts or omissions of its respective personnel will in all circumstances be limited to direct damages and in no event will either party have any liability to the other, whatsoever, for any special, consequential, indirect, incidental, exemplary or punitive damages, whether in contract, tort or otherwise in relation to this agreement, including without limitation loss of revenue, lost profits, loss of goodwill, work stoppage, computer failure or malfunction, lost or corrupted data, business interruption, or loss of business opportunities. In no event shall either party’s aggregate liability in connection with this Agreement or Statement of Work exceed the amounts actually paid by Client to DigiClimber in aggregate over the immediately preceding six (6) month period.
GOVERNING LAW
This Agreement will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard for principles of conflict of laws.
RELATIONSHIP OF PARTIES
DigiClimber is an independent contractor and nothing contained herein will be deemed to create the relationship of principal and agent, partnership, membership, joint venture, employment, trust or other relationship between the parties hereto or any of their respective employees.
LANGUAGE
This document, upon instructions from the parties hereto, has been drafted in the English language. This Agreement contains the entire agreement between the parties and there are no other understandings except as set forth in writing and signed by both parties.
