THIS TERMS OF SERVICE (this “TOS” or this “Agreement”) is an agreement made between GK Media Design Inc., dba Quarterback Digital (“Consultant”) and the customer or client (“Client”) listed on any online or electronic Ordering document entered into between the parties (the “Order”), to perform certain services (the “Services”), including without limitation the solicitation of votes (“Votes”) from stockholders, members, or other equity holders or voters of the Client entity (“Voters”) as offered by Consultant under the ClickBallot brand name and is effective as of the date on the initial Order between the parties (the “Effective Date”).
- Term & Renewal. The initial term length shall be as specified the initial Order; provided that if no initial term length is specified in any Order then the initial term shall be twelve months (the “Initial Term”). After such initial term, this Agreement shall automatically be renewed for successive twelve-month renewal terms (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party opts out by giving written notice to the other party at least 30 days prior to the end of the then current term. Services include only one Voting cycle (one ballot) per year unless otherwise mutually agreed. Regardless of the term of this Agreement being active for one year at a time, the relevant Services hereunder may be completed in a shorter window of time, as set forth in the Order and/or as mutually agreed.
- Termination. Either party may terminate this Agreement (a) upon 30 days prior written notice if the other party has materially breached this Agreement and has not cured the same within the 30 day notice period, or (b) immediately upon written notice in the event of the filing of a petition for bankruptcy or reorganization by or against the other party or the dissolution or liquidation of the other party. Upon any termination of this Agreement, Client shall promptly discontinue all use of the Service and any applicable documentation and materials, and erase or destroy any electronic copies or partial copies of the documentation or materials or any other Confidential Information of Consultant. Any payment obligations of Client, provisions providing for limitations on liability, and those terms which by their nature were intended to survive any termination of this Agreement shall survive.
- Rates; Payments. Client shall pay Consultant for Services performed in accordance with this Agreement and the applicable Order at the project rate set forth in the applicable Order. All amounts are due and payable in full by Client upon Client entering into this Agreement, and again at the start of each Renewal Term. The fees, and any fees for any additional services, equipment or subscription extensions which may be purchased hereunder, are exclusive of all applicable taxes, duties or other governmental assessments, which are the responsibility of Client. Unless otherwise stated in this Agreement, invoices will be stated in United States dollars. Late payments shall be subject to a service charge equal to the lesser of 1.5% per month or the maximum amount allowed by law.
- Warranties. Except as expressly provided herein, neither party makes, and each party expressly disclaims, all warranties, express or implied. Each party represents and warrants that it has the full right to enter and perform its obligation under this Agreement. Each party will comply with all applicable laws.
(a) Consultant represents and warrants that: (i) all Services will be performed in a professional and workmanlike manner; (ii) all Services will be performed in accordance with applicable laws; and (iii) all deliverables will conform to any express requirements and specifications set forth in this Agreement. The warranties from Consultant shall not apply if the non-conformance is not replicable or results from third party systems or components used by Client. Consultant does not warrant that operation of or access to the Service will be uninterrupted or error-free, or that all reported defects will be corrected. Consultant’s sole liability and Client’s sole and exclusive remedy for any breach of the limited warranty set forth above shall be, in Consultant’s sole discretion, to (i) use commercially reasonable efforts to provide an error-correction or work-around for the reported non-conformity, or (ii) terminate this Agreement and refund to Client the that portion of any prepaid fees to the extent associated with any unused balance of the Term. Consultant shall have no obligation with respect to a warranty claim unless notified of such claim promptly (i.e., within 30 days).
(b) If the parties mutually agree on a “Reach A Quorum” guarantee (or other similar phrasing), that guarantee has certain limitations as may be determined by Consultant’s policies from time to time, including, e.g., that Client follows all recommendations and advice for optimizing the campaign (e.g., email content copy, etc.), and only applies to votes where quorum is required, and is subject to reasonableness, and is expressly subject to the Force Majeure provisions herein (as defined in Section 12). The sole remedy (if any) for such a guarantee (if and when applicable) is money back to the extent paid by Client to Consultant for such campaign.
(c) Client represents and warrants that it has all necessary rights to provide any data, information, content, logos, email addresses, or other materials it provides to Consultant for the purpose of providing the Services (“Client Materials”), without infringing any third party rights. Without limiting the generality of the foregoing, if the Services include sending emails, texts, or other communications to Client lists, Client represents, warrants and covenants that it has all necessary consents, opt ins and right to send and deliver such communications, including as may be required by any applicable laws, rules or regulations.
(d) Client acknowledges that the Services are dependent upon timely input, information and cooperation from Client. Client shall designate a “point person” or primary contact for the project. This point person will supply the necessary Client Materials, including details of the Vote and ballot content list of Voters in the format required by Consultant, and other reasonably requested information, and will promptly review and approve certain materials such as draft online ballot and draft emails to go out to their Voters. Sign off via email by that point person is considered approval. Once the ballot is open, the ballot and the Voter list is locked. Client cannot amend the Voter list or the ballot once the vote opens.
- Independent Contractor. Consultant is an independent contractor and not an employee, agent, partner, joint-venturer, or representative of Client, except to the extent acting on Client’s behalf in performing the Services.
- Proprietary Rights. Consultant retains all rights in and to its software, and the Services, and in and to its knowhow, processes, methodologies, tools, concepts, techniques, templates, content, procedures, forms, webpages, and other intellectual property, including without limitation any derivatives, modifications or enhancements made thereto while performing the Services. Client has the right and license to use the Services only during the term and only in accordance with the terms hereof. Client shall not attempt to reverse engineer any Consultant software or intellectual property, resell any Consultant services, nor use this relationship to build any competitive products or services. This paragraph shall survive expiration or termination of the Agreement.
- Indemnification & Limits on Liability.
(a) Consultant shall defend, indemnify and hold the Client harmless from and against any loss, costs, expenses (including reasonable attorneys’ fees) or damages incurred by the Client to the extent relating to any third party allegation or claim that the Services, as provided to Client (without alteration or combination) infringe or misappropriates a patent, copyright, trademark, trade secret, or other intellectual or proprietary right. Client shall have the right to participate in its defense at its expense with counsel of its own choosing. The foregoing obligations are contingent upon Client providing Consultant with: (i) prompt notice of such claim (and in any event notice in sufficient time for Consultant to respond without prejudice); (ii) the exclusive right to control, direct, and perform the investigation, defense, or settlement of such claim; and (iii) such assistance as may be reasonably requested by Consultant. THIS SECTION 7(A) SETS FORTH CONSULTANT’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE SERVICE, OR ANY CONSULTING SERVICES
(b) Client shall defend, indemnify and hold the Consultant harmless from and against any loss, costs, expenses (including reasonable attorneys’ fees) or damages incurred by the Consultant to the extent relating to any breach of this Agreement, including without limitation any representation, warranty, covenant or obligation herein, and for any claim or allegation that any Client Materials infringe or misappropriates a patent, copyright, trademark, trade secret, or other third party right (including without limitation intellectual property rights, privacy rights, and moral rights).
(C) EXCEPT FOR THE INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREIN, FOR BREACH OF LAW, OR FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY A PARTY, NEITHER PARTY SHALL BE LIABLE (A) FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, AND/OR (B) FOR ANY AMOUNTS GREATER THAN AMOUNTS PAID OR PAYABLE BY CLIENT TO CONSULTANT. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CONSULTANT’S (INCLUDING ITS AGENTS, EMPLOYEES AND CONTRACTORS, COLLECTIVELY) MAXIMUM LIABILITY HEREUNDER SHALL BE LIMITED TO AMOUNTS PAID BY CLIENT TO CONSULTANT.
Client agrees that any dispute it has between the parties arising out of or relating to the negotiation, execution, performance, breach or termination of this Agreement or the consulting relationship shall be settled by arbitration. The location for the arbitration shall be the Toronto, Ontario (Canada) metropolitan area. Any award made by such panel shall be final, binding and conclusive on the parties for all purposes, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrators' fees and expenses and all administrative fees and expenses associated with the filing of the arbitration shall be shared equally between the Client and Consultant. The parties acknowledge and agree that their obligations to arbitrate under this Section survive the termination of this Agreement and continue after the termination of the consulting relationship between Consultant and the Client. Client further agrees that the arbitration provisions of this Agreement shall provide Client with its exclusive remedy, and Client expressly waives any right it might have to seek redress in any other forum, except as otherwise expressly provided in this Agreement. By electing arbitration as the means for final settlement of all claims, Client hereby waives its rights to, and agrees not to, sue Consultant other in any action in any court with respect to such claims, but may seek to enforce in court an arbitration award rendered pursuant to this Agreement. The parties specifically agree to waive their respective rights to a trial by jury, and further agree that no demand, request or motion will be made for trial by jury.
(a) Confidential Information. As used herein, “Confidential Information” is all technical, financial and business information describing or relating to the business of the either party (the “Discloser”) or any of its current or prospective customers or suppliers, which information is generally held in confidence by Discloser and is not generally known outside of the Discloser or such parties, including, without limitation, marketing, sales, pricing, operation, client lists, marketing/business plans, financial data, and other business information, developments, computer programs and systems, test designs, analytical models, know-how, methodology, and any other technical information, and all record-bearing media containing or disclosing such information and techniques which are disclosed or learned pursuant to this Agreement, and any other information which a reasonable person would or should understand to be confidential or proprietary in nature.
(b) Client Data and Consultant Data. Without limiting the generality of the foregoing, all data and information delivered by or on behalf of Client, and/or any data collected pursuant to this Agreement from or about Client or its customers or end users (“Client Data”) shall all be owned by and Confidential Information of Client. Client Data expressly excludes any raw data to the extent processed by Consultant, or resulting as an output of, the Service, which shall be considered Consultant Data (defined below). Consultant shall own all rights to any data in and/or derived from the Service, including all data Consultant incorporated therein, and all usage data, statistical data or aggregated data collected (collectively, “Consultant Data”). Consultant shall also have the right to own and use, during and after the term any aggregated and anonymized portions of Client Data, on a non-personally identifiable basis. Consultant Data expressly includes analytics and usage data such as from Google Analytics and other lead tracking services, with respect to the Services. Consultant will not keep Client Data email lists for more than 30 days after the close of the ballot at the end of Voting.
(c) Nondisclosure. The receiving party (“Recipient”) agrees that, during and after the term of this Agreement, it shall not disclose the Confidential Information to any third party or use it for any purpose other than to fulfill its obligations pursuant to this Agreement. Further, Recipient agrees that it shall not, without the prior written consent of the Discloser, copy, duplicate or otherwise reproduce any document or tangible item embodying or pertaining to any of the Discloser’s Confidential Information. Immediately upon termination of this Agreement or at any other time upon the Discloser’s request, Recipient shall immediately return to the Discloser all materials either in Recipient’s possession reflecting or containing any Confidential Information of Discloser and Recipient shall not retain any copies, extracts or other reproductions in whole or in part of any of the foregoing.
(d) Exceptions. Client acknowledges and agrees that the internet is not secure, and email accounts of its members may not be secure, and that Consultant cannot guarantee confidentiality and security of data sent over the internet or by email or other modes of communication.
- Survival. Termination of this Agreement (except if properly terminated by Client for material breach by Consultant) shall not diminish or absolve Client of responsibility to pay in full for all anticipated Services over the initially anticipated term of the Agreement. Sections 3, 6, 7, 8, 9, 10, 11 and 12 shall survive the termination of this Agreement.
- Subcontract; Assignment. Consultant shall be responsible for the performance, acts or omissions of permitted contractors to the same extent it would be liable for its own performance, acts or omissions, and Consultant shall use reasonable efforts to ensure that such contractors comply with the terms of this Agreement. Client may not assign this Agreement, in whole or in part, without the prior consent of Consultant.
- Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed effective upon personal delivery or one day after deposit with a nationally or internationally recognized commercial courier service or by registered or certified mail, postage and other fees prepaid, in each case with confirmation of delivery, and addressed to the other party at the address set forth above, or such other address as either party may designated to the other in accordance with this Section. Notices to Client may also be made by email.
We reserve the right to change these terms by posting a new version online, so be sure to check this page for updates.
Last Updated: September 13, 2018