Terms and Conditions
GETKOLB.COM SERVICES AGREEMENT
GETKOLB.COM IS OWNED AND OPERATED BY EQUANIMIND, LLC
THIS SERVICES AGREEMENT (“Agreement”) is made on the date of website purchase (“Effective Date”) between Client (“Client”), and Equanimind LLC, a Connecticut company, with a head office at 2046 Boston Post Road, Westbrook, Connecticut (“Provider”), for the purpose of setting forth the exclusive terms and conditions by which Client desires to acquire Provider’s services. Each of Client and Provider shall each hereinafter be referred to as a “party” or together as “parties”. By purchasing this service via Getkolb.com ecommerce website (www.getkolb.com), and therefore checking the box that says “I acknowledge that I have read and agree to the terms and conditions of this sale”, Client and Provider agree to execute this Services Agreement.
In consideration of the mutual obligations specified in this Agreement, the parties, intending to be legally bound hereby, agree to the following:
(a) Client hereby retains Provider to perform the services and Deliverables defined in the Statement of Work (the “SOW”) attached as Schedule A or in future SOW’s as the parties may agree (all together the “Services”). No change to the Services will be valid unless through a prior written amendment signed by both parties.
(b) The “Deliverables”, if any, are defined in an agreed SOW and exclude all Provider’s IP (as that term is defined in section 5 below).
(c) The parties acknowledge that collaboration between them is essential to the good and timely performance of the Services. Client agrees to keep Provider updated as soon as practicable of any progress, problems, and/or developments that may impact the performance of the Services. Notably, Client must provide Provider with access to any relevant personnel to, among other things, promptly provide any necessary feedback or information required to be incorporated into the Services.
(d) The contractual relationship contemplated in this Agreement and any SOW doesn’t change anything about Client’s relationship with third parties whose services Client may retain to deploy, host or manage the results of the Services. These relationships remain at all times governed by the terms Client has agreed separately with each of these third parties. Client remains at all times solely responsible for third party tools, content, hosting and changes that may impact the Services, and for all choices made in connection with third party offerings. This section 1(d) applies even in cases where Client requests Provider to contract with third parties on behalf of Client.
(a) Client shall pay compensation to Provider at the US Dollar rates and prices set forth on Schedule A or future SOW’s as applicable (“Fees”). Client shall reimburse Provider for all expenses it incurs in the course of performance of the Services, including without limitation the expenses defined in a SOW.
(b) Unless stipulated otherwise in a SOW, Provider shall issue invoices for Services to Client monthly in advance, and Fees are payable upon reception of invoice in US Dollar currency by Paypal, check or bank transfer to Provider’s account to be designated in due time.
(c) Client shall not withhold any sums or payments made to Provider for social security or other federal, state, provincial or local tax liabilities or contributions, and all withholdings, liabilities, and contributions shall be solely Provider’s responsibility. All Fees are stated exclusive of any applicable sales tax, TVQ, TPS, GST, VAT or other similar goods, services, sales or value added tax. Provider shall invoice to Client all applicable sales tax, TVQ, TPS, GST, VAT and/or other taxes related to the performance of the Services (except for taxes on Provider’s revenue), unless Client can evidence an exemption.
(d) All past due payments shall give rise to liquidated damages at a rate of 5% per month of any late payment amount (or the applicable legal rate of interest in Connecticut, whichever is higher), and the parties acknowledge that such late payment interest constitutes a reasonable estimation of damages that would be difficult to establish were it not for this subsection 2(d).
(e) Client warrants that no payment hereunder is dependent on any third party’s approval or receipt of payment from any third party.
(a) Each party understands that, in connection with this Agreement, it may receive, or otherwise be exposed to the other Party’s trade secrets, business, proprietary and/or technical information, on any support or media, including without limitation, information concerning customer or supplier lists, customer support strategies, employees, research and development, financial information (including sales, costs, profits, and pricing methods), manufacturing, marketing, proprietary software, proprietary databases, hardware, firmware, and related documentation, inventions (whether patentable or not), know-how, show-how, and other information considered to be confidential by a party, and all derivatives, improvements and enhancements to any of the above, in addition to all information Provider receives from others under an obligation of confidentiality (all the above together hereinafter “Confidential Information”).
(b) Each Party acknowledges that the Confidential Information is the sole, exclusive and extremely valuable property of the other party. Accordingly, the parties hereby agree to the Nondisclosure Terms attached hereto as Schedule B (the “Nondisclosure Agreement”). Notwithstanding any other terms, the terms of said Schedule B and of this section 3 shall survive the expiry or termination of this Agreement for any cause.
4.1 By Provider.
(a) Provider warrants to Client (i) that it has the capability and experience to perform the Services and that neither it, nor any employees or sub-contractors is party to any contract or agreement of whatever nature which in any way prohibits, prevents or interferes with its performance of its obligations hereunder; and (ii) that the services performed hereunder shall substantially comply with the specification set forth in agreed SOWs, or where no requirement has been so agreed that they shall be performed in accordance with industry-wide standards in provider’s industry.
(b) PROVIDER DOES NOT WARRANT THAT ALL DEFECTS OR ERRORS CAN BE CORRECTED, OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH ALL CLIENT MATERIAL OR ANY OTHER HARDWARE, SOFTWARE, SYSTEMS SERVICES OR DATA NOT PROVIDED BY PROVIDER. ALL PROVIDER WARRANTIES ARE VOID WHERE THE SERVICES ARE MODIFIED BY ANYONE ELSE THAN PROVIDER.
(c) THE ABOVE WARRANTIES ARE GRANTED IN LIEU OF ANY IMPLIED OR STATUTORY OBLIGATIONS OR WARRANTIES AND THE PARTIES WAIVE APPLICATION OF ALL IMPLIED OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, RESULT OR FITNESS FOR PURPOSE.
(d) IN CASE OF A MATERIAL BREACH OF THE ABOVE WARRANTIES OR ANY OTHER TERM OF THIS AGREEMENT, CLIENT’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO ISSUE A WRITTEN NOTICE EVIDENCING THE MATERIAL NON-COMPLIANCE WITH THE TERMS OF THIS AGREEMENT, UPON WHICH PROVIDER MAY ELECT AT ITS OPTION TO RE-PERFORM THE DEFECTIVE SERVICES WITHIN A REASONABLE TIME FRAME, OR REFUND PRO RATA THE DEFECTIVE PORTION OF THE SERVICES.
4.2 By Client.
(a) Client warrants to Provider: (a) that to the best of Client’s knowledge, any tools, material, content, code, documentation or data (including those of third parties) provided by Client to Provider for use by Provider in the course of the Services do not infringe the rights of any third party; (b) that Client shall comply with the terms and conditions of any licensing agreements which govern the use of third party tools, material, content, code, documentation or data; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to Provider to use any third party tools, material, content, code, documentation or data.
(b) Client warrants to Provider: (a) that any Client content necessary for the performance of the Services will be in a form suitable for use in the Services without further preparation by Provider, unless agreed otherwise in a SOW; (b) that Client will proofread, test and evaluate the Services prior to acceptance, failing which Client will be charged for any corrections requested after acceptance; (c) that Client will resolve negative reviews and less relevant stories published on various online community platforms; and (d) that Client will resolve issues relate to website safety and security.
5 Intellectual Property. License.
(a) Client acknowledges Provider’s or Provider’s licensors sole and exclusive right, title and interest in and to any tools, material, content, code, documentation or data of Provider or Provider’s licensor existing prior to the Effective Date, as well as to all future versions thereof modified, developed or edited during the Term or thereafter (“Provider’s IP”). Notwithstanding any other term, Client does not acquire, and is not assigned, any rights, copyright, patent, right to apply for copyright or patent, or interest in Provider’s IP hereunder.
(b) Provider hereby irrevocably sells, assigns, transfers and sets over unto Client and its successors and assigns, all right, title and interest, including without limitation any copyright, mask work, patent, trade secret, or other intellectual property rights in and to the Deliverables, if any, including without limitation all rights to reproduce, publish and print, in whole or in part, the Deliverables in any format or media.
(c) The parties acknowledge that nothing in this Agreement shall limit or prevent Provider from exercising present or future business or entering into similar agreements with others.
(d) Subject the other sections of this section 5 and prompt payment of all sums owed by Client to Provider, Provider grants to Client a limited, non-exclusive, non-transferable, paid up, perpetual license to use any of Provider’s IP used in the development of the Deliverables that is necessary to use the Deliverables in Client’s usual course of business, and not for stand-alone resale or use as a service bureau. All other rights are reserved.
(e) To the extent necessary to perform the Services and related tasks, such as in the case where registration of a domain name is necessary, Client grants to Provider a limited, non-exclusive, paid-up, non-transferrable license to use Client’s trademark(s) for the duration of the SOW under which use of the trademark(s) is necessary.
- Client will indemnify, defend, and hold harmless each of Provider and its officers, directors, employees, successors and assigns (collectively the “Indemnified Parties”) from and against all claims, suits, demands and actions brought against the Indemnified Parties or tendered to the Indemnified Parties for defense and/or indemnification (collectively “Claims”), and for all damages, losses, costs, and liabilities (including reasonable attorney and professional fees) (collectively “Losses”) that result or arise from Claims, which in whole or in part, directly or indirectly: (i) allege that any Services provided hereunder, or any part thereof, or its manufacture, use, import, support, sale or distribution infringe, misappropriate, or violate any intellectual property rights of any third party; or (ii) allege that in the provision of Services provided hereunder has caused personal injury or damage to property. In addition to the above, Client will pay all amounts agreed to in a monetary settlement of the Claims and all Losses that result or arise from the Claims. This section 6 shall survive the expiry or termination for any cause of this Agreement for a period of two (2) years thereafter.
- Limitation of Liability.
EXCEPT TO THE EXTENT OF A PARTY’S INDEMNIFICATION OBLIGATION OR BREACH OF ITS CONFIDENTIALITY OBLIGATION CONTAINED HEREIN OR A PARTY’S WILLFUL INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SOW MADE IN ITS APPLICATION, WHETHER THE CLAIM IS BASED IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR IN CONTRACT, AT LAW OR IN EQUITY, INCLUDING WITHOUT LIMITATION, LOSS OF PROFIT, INCOME, SAVINGS, CONTENT OR DATA, EVEN IF ADVISED OF THE POSSIBLITY THEREOF. EXCEPT TO THE EXTENT OF A PARTY’S INDEMNIFICATION OBLIGATION OR BREACH OF ITS CONFIDENTIALITY OBLIGATION CONTAINED HEREIN OR A PARTY’S WILLFUL INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR ANY SOW MADE IN ITS APPLICATION, EXCEED THE TOTAL FEES ACCRUED OR PAID BY CLIENT TO PROVIDER DURING THE LAST INVOICED MONTH PRECEDING THE FIRST OF THE EVENTS GIVING RISE TO SAID CLAIM. THE EXCLUSIONS AND LIMITATIONS OF THIS CLAUSE 7 DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
THE PARTIES AGREE THAT THEY WOULD NOT HAVE CONTRACTED BUT FOR THE ALLOCATION OF RISKS AGREED IN THIS SECTION 7, AND THAT SUCH ALLOCATION OF RISKS HAS BEEN REFLECTED IN ANY PRICE OR RATE THEY AGREED HEREUNDER.
- Term and Termination.
(a) This Agreement shall commence on the Effective Date and shall continue in effect for so long as Services are being rendered under an SOW (the “Term”).
(b) In the event that a party materially breaches any provision of this Agreement and, where such breach is curable, fails to cure such breach within thirty (30) days of receipt of written notice describing the breach, the non-breaching party shall be entitled to terminate this Agreement and any SOWs hereunder with immediate effect upon written notice to the breaching party. In the event of such termination, Client shall reimburse to Provider all incurred expenses and pay for all delivered Services at their prorata value at date of termination.
(c) In the event that a SOW expires before all Services contemplated in that SOW are performed, then the terms of the SOW and of this Agreement shall survive solely for the period of time necessary for completion.
(a) Change Request: If Client wants to modify the Services, Client shall send Provider a prior written Change Order describing the requested changes in detail. Within five (7) days of receiving a Change Order, Provider will respond with a statement for Client’s express acceptance proposing availability, additional fees, changes to delivery dates, and any modification to the Agreement and/or SOW. Provider will evaluate each Change Order at its standard rate and charges.
(b) Major Change: If Client’s Change Order represents a change at or near ten (10%) percent of the time required to produce the whole or part of the Services, or of the value of the Services, Provider shall be entitled to submit a new and separate Agreement or SOW to Client for written approval and replacing the present Agreement or present SOW. Provider shall not begin work on any changed or modified services until he receives a fully signed revised service agreement and any additional fees.
(c) Minor Change: If Client’s Change Order is not a Major Change, Client will be billed on a time and materials basis at Service Provider’s hourly rate plus all applicable tax, unless a pre-agreed price applies otherwise in an agreed SOW such as in the case of a prepaid monthly maintenance plan. Such charges shall be in addition to all other amount payable under this Agreement, despite any maximum budget, contract price or final price identified. Provider may extend or modify any delivery schedule or deadlines in the Agreement or SOW as may be required by such changes.
- Independent Contractor.
Client and Provider expressly agree and understand that Provider is an independent contractor and nothing in this Agreement nor the Services rendered hereunder is meant, or shall be construed in any way or manner, to create between them a relationship of employer and employee, principal and agent, partners or any other relationship other than that of independent parties contracting with each other solely for the purpose of carrying out the provisions of the Agreement. Unless otherwise expressly authorized by Client, Provider is not the agent of Client and is not authorized and shall not have the power or authority to bind Client or incur any liability or obligation, or act on behalf of Client.
Provider is entitled to subcontract the whole or part of the Services.
- Non-Sollicitation. Non-Disparagement.
Client agrees not to directly or indirectly solicit, hire, recruit any employee or subcontractor of Provider, or attempt to do so, during the Term and for a period of two (2) years thereafter.
Client agrees and covenants that it will not at any time make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments or statements concerning the Provider or its businesses, or any of its employees, officers, and existing and prospective customers, suppliers, investors and other associated third parties.
(a) This Agreement contains no exclusivity binding on Provider and none of its terms shall be so construed. This Agreement may not be modified unless as mutually agreed upon in writing by both Provider and Client. All rights, obligations and provisions of this Agreement that by their terms apply to time periods after the expiration or termination of this Agreement shall survive the termination of this Agreement regardless of the manner of such termination. Any waiver by Provider of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of such provision or any other provision hereof.
(b) Client hereby agrees that each provision herein shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear.
(c) Provider shall have the right to assign this Agreement to its successors and assigns and this Agreement shall inure to the benefit of and be enforceable by said successors or assigns. Client may not assign this Agreement or any rights or obligations hereunder without the prior written consent of Provider.
(d) THIS AGREEMENT AND ALL ASPECTS OF THE RELATIONSHIP BETWEEN THE PARTIES HERETO SHALL BE CONSTRUED, ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF CONNECTICUT AND APPLICABLE FEDERAL LAWS OF THE UNITED STATES, EXCLUDING ITS CONFLICT OF LAWS RULES AND PRINCIPLES. ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE SETTLED BEFORE THE COURTS HAVING SUBJECT MATTER JURISDICTION IN HARTFORD, CONNECTICUT AND THE PARTIES HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION THESE COURTS. EACH PARTY SHALL BEAR ITS OWN LEGAL COSTS IN ANY PROCEEDINGS, INCLUDING ITS OWN ATTORNEY’S FEES.
(e) This Agreement, together with the Schedules attached hereto and herein incorporated by reference, contains the entire agreement between the parties hereto with respect to the transactions contemplated herein. All other negotiations and agreements (written or oral) between the parties are superseded by this Agreement and there are no representations, warranties, understandings or agreements other than those expressly set forth herein. The language of all parts of this Agreement will in all cases be construed as a whole in accordance with its fair meaning and not strictly for or against either party hereto.
(f) Any conflict between this Agreement and any of the Schedules attached hereto or any future SOW’s, shall be controlled by the provisions of this Agreement.
(g) All notices provided for in this Agreement shall be given in writing and shall be effective when either served by hand delivery, electronic facsimile transmission, express overnight courier service, or by registered or certified mail, return receipt requested, addressed to the parties at their respective addresses as set forth at the beginning of this Agreement, or to such other address or addresses as either party may later specify by written notice to the other.
(h) Save as expressly stated herein, this Agreement creates no rights in favor of third parties.
(i) Each party to this Agreement agrees to comply with all relevant export laws and regulations of the United States and other countries, including to assure that no Confidential Information, Services, Deliverables, or any portion thereof is exported, directly or indirectly, in violation of such laws. Services, technology, and technical data received by Client from Provider shall be deemed and treated as being classified under Export Control Classification Number EAR99 on the Commerce Control List of the U.S. Export Administration Regulations for purposes of export from the United States (or successor regulation(s)), unless Provider clearly marks such technical data to the contrary and supplies alternative export control information. Client agrees to indemnify, defend and hold harmless Provider against any and all liability under U.S. export control laws, regulations and requirements in connection with export or re-export of the technical data received from Provider if the technical data from Provider is not clearly marked with alternative export control information.
(j) Except for payment obligations, neither party shall be liable to the other party for any failure to perform, or delay in the performance of that party’s obligations, except for payment obligations, when such failure to perform or delay in performance is caused by an event of force majeure, provided that the party whose performance is prevented or delayed shall give prompt notice of this to the other party. If the performance of a party’s obligations is so delayed for more than 28 days, either party may immediately terminate this Agreement by notice in writing to the other party, and Client shall reimburse to Provider all incurred expenses and pay for all delivered Services at their prorata value at date of termination. “Force majeure” shall mean any event outside the reasonable control of the affected party.
(k) Provider may refer to Client as a client and link client’s websites for promotional and marketing purposes.
(l) Each party shall bear the costs it incurs in the preparation and negotiation of this Agreement, including legal costs.
Statement of Work
Roughly $10/year. Set to auto-renew. (1st year included in 1- Fees). All subsequent years shall be paid directly by Client to the domain name provider. Domain names are not provided directly by Getkolb.com and prices are subject to change.
Definition of Services:
Provider will develop Client a website or ecommerce application, or render consulting services.
Definition of Deliverables:
[No Deliverables are provided under the Agreement unless this Part 4 describes them]
Client provided tools.
Client will provide website images and services details as requested.
- With respect to Confidential Information of the other Party, each Party shall: (a) hold such Confidential Information in confidence and protect it with the same degree of care with which receiving party protects its own Confidential Information, but in no event less than reasonable care; (b) use such Confidential Information only for the purpose(s) described in the Agreement, except as may otherwise be mutually agreed to by the parties hereto in writing in advance of such use; (c) not copy or otherwise duplicate such Confidential Information, or allow anyone else to copy or otherwise duplicate any of such Confidential Information without disclosing party’s prior written approval, except in the normal anticipated use thereof; (d) restrict disclosure of such Confidential Information solely to those employees, subcontractors, contractors with a need to know (collectively, the “Representatives”), and not disclose it to any other parties;(e) require that all Representatives agree to maintain the confidentiality thereof, and otherwise comply with the provisions hereof, by contract, work rules or other appropriate methods; and (f) promptly notify disclosing party in writing in the event that receiving party or its Representatives becomes legally compelled in a judicial, administrative or governmental proceeding to disclose any of the Confidential Information so that disclosing party, at its expense and under its control, may seek a protective order or other appropriate remedy and/or waive compliance with this Agreement.
- Receiving party shall not have any obligation to preserve the confidential nature of Confidential Information of disclosing party which: (a) Is already known by receiving party, as evidenced by a writing made or dated prior to the date of disclosure; or (b) Is or becomes generally known to the public at large through no wrongful act or other involvement of receiving party; or (c) Is received from an unaffiliated third party without an obligation of nondisclosure; or (d) Is independently developed by receiving party or for receiving party by third parties, without any access whatsoever to the Confidential Information; or (e) Is approved in advance for release by written authorization of an officer of disclosing party; or (f) must be disclosed by receiving party under sub-clause 1(f).
- The disclosure of Confidential Information by disclosing party does not confer any license under any patent, trademark, copyright, or any other intellectual property right, by implication or otherwise and all right, title and interest in and to the Confidential Information, shall remain with, and vest exclusively in disclosing party.
- The provisions hereof shall inure and accrue to the benefit and detriment of and be binding upon the successors and assigns of the parties hereto.
- Upon the termination or expiration of this Agreement or at the written request and instruction of disclosing party, all Confidential Information furnished hereunder, including any copies thereof, shall, at the disclosing party’s instruction, either be either returned to the disclosing party or destroyed and a certificate of destruction shall be timely provided by receiving party to disclosing party.