Terms & Conditions
1. Interpretation
In these Conditions:
1.1 “Authorized Persons” means the Recipient’s officers, employees, financiers and contracted professional advisers who reasonably require access to Confidential Information for the purposes of this Contract.
1.2 “Business Day” means a day that is not a Saturday, Sunday or public holiday in the U.S.A.
1.3 “Confidential Information” means all Information relating to the affairs of the Provider disclosed or made available to the Recipient or an Authorized Person by or on behalf of the Provider for the purposes of this Contract and includes:
1.3.1 Information that is by its nature confidential;
1.3.2 Information that is identified as confidential;
1.3.3 Information that the Recipient or Authorized Person knows or ought to know is confidential;
1.3.4 Information comprised in or relating to any Intellectual Property Rights of the Provider or any other person;
1.3.5 Information relating to the financial position of the Provider or any other person;
1.3.6 Information that has any actual or potential commercial value to the Provider or to any other person; and
1.3.7 Derived Information.
1.4 “Client” means the Client specified in the Proposal, or there is no Client specified in the Proposal, the receiver of the Services from Skunk Digital and includes any servants, agents, or contractors acting on behalf of the Client where the context permits.
1.5 “Conditions” means these terms and conditions.
1.6 “Consequential Loss” includes any loss of data or profits, loss of anticipated savings, economic loss or interruption of business or any other indirect or consequential loss.
1.7 “Consumer” means an individual who obtains or has obtained a financial product or service from you that is to be used primarily for personal, family, or household purposes, or that individual’s legal representative.
1.8 “Contract” means a contract for the supply of Services in accordance with these Conditions, as evidenced by the acceptance of any Proposal in accordance with clause 3 from the Client to Skunk Digital.
1.9 “Derived Information” means any information derived or produced by the Recipient or any Authorized Person wholly or partially from any Confidential Information.
1.10 “Disbursements” means third party costs incurred by Skunk Digital on behalf of the Client which from time to time may be listed in the Proposal or otherwise advised to the Client by Skunk Digital in writing.
1.11 “DocuSign” means the website www.docusign.com, or any other website operated by DocuSign from time to time.
1.12 “End Date” means the end date specified in the Proposal, unless automatically renewed in accordance with clause 6.2.
1.13 “Skunk Digital” means Skunk Digital LLC.
1.14 “Implied Term(s)” means any guarantees, conditions, warranties or other terms implied by any U.S. federal or state laws, or the laws of any other jurisdiction.
1.15 “Information” means information of any nature, knowledge, technology, ideas, technical data, concepts, techniques, processes, formulae, expertise, models, drafts and diagrams, drawings, computer programs, source codes, object codes, user manuals, programming manuals, modification manuals, flow charts, software listings, trade secrets, inventions, discoveries, designs, methods, knowhow, and any other scientific, computing, technical or manufacturing information and data whether recorded or not.
1.16 “Intellectual Property” and “Intellectual Property Rights” include property and rights in connection with copyright (including future copyright and rights in the nature of or analogous to copyright), know-how, trade mark, service mark, design, inventions (including patents), semi-conductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights (including all renewals and extensions) whether created before or on or after this agreement.
1.17 “Liabilities” means liabilities, losses, damages, actions, causes of action, arbitrations, claims, orders, judgments, outgoings, costs (including legal costs calculated on a solicitor and own client basis) and expenses, whether present or future, actual or contingent.
1.18 “Proposal” means any Proposal for Services put forward by Skunk Digital to the Client, which will be subject to a Quotation and these Conditions.
1.19 “Provider” means a party who discloses or authorizes the disclosure of Information for the purposes of this Contract.
1.20 “Quotation” means a quotation supplied by Skunk Digital to the Client in respect of the Services.
1.21 “Recipient” means a party to whom Information is disclosed for the purposes of this Contract.
1.22 “Services” means the services provided by Skunk Digital, being a full-service digital marketing agency specializing in SEO, Google Ads, Facebook Ads, sales funnels, branding and corporate identity development and website development, to the Client from time to time and which are the subject of a Quotation.
1.23 “SEO” means Search Engine Optimization.
1.24 “Start Date” means the start date for the Services as outlined in the Proposal.
1.25 “Term” means the term during which Skunk Digital will provide the Services to the Client, which will commence on the Start Date and end on the earlier of the End Date and the date of cancellation of the Contract in accordance with these Conditions.
2. General
2.1 These Conditions apply to all Services provided by Skunk Digital from the date of publication of these Conditions to Skunk Digital’s Clients and the Client is deemed to have read and accepted these Conditions when accepting a Proposal in accordance with clause 3.
2.2 These Conditions shall prevail over all inconsistencies in a Proposal, unless Skunk Digital expressly agrees otherwise and that agreement is acknowledged in writing.
2.3 Skunk Digital may change the terms of these Conditions at any time without notice, and any such changes will have effect from the date of publication to the Clients of Skunk Digital.
3. Acceptance of the Contract
3.1 The Client is deemed to have accepted the Proposal and Terms of the contract after completing the process outlined below:
3.1.1 Skunk Digital presents the Proposal to Client.
3.1.2 Client accepts the Proposal as is; or requests changes to the Proposal, and if/when Skunk Digital approves the amendments, the modified Proposal is deemed accepted.
3.1.3 Skunk Digital sends Client the finalized Proposal through Docusign and the first invoice.
3.1.4 Skunk Digital will commence service if and only if it receives both the signed agreement and payment.
4. Provision of the Services
4.1 Any timeframes for provision of the Services made known to the Client are estimates only and Skunk Digital is not liable for late provision or non-provision of the Services. Skunk Digital will complete all services within a reasonable timeframe.
4.2 Skunk Digital is not liable for any loss, damage or delay occasioned to the Client or its customers arising from late or non-provision of the Services.
4.3 late provision or non-provision does not vary these Conditions or relieve the Client from its obligations to accept and pay for the Services.
5. Information and materials provided by the Client for the Services
5.1 The Client is to provide Skunk Digital with any and all information, material and access that is reasonably requested by Skunk Digital in the timeframe and manner specified by Skunk Digital.
5.2 The Client warrants that such material or information provided is true and correct and that it does not violate any laws or infringe the rights of any third party
5.3 If the Client fails to provide the information, access and/or materials within the timeframe specified by Skunk Digital then Skunk Digital, in its sole and absolute discretion, may charge the Client additional costs as a result of this delay.
5.4 The Client warrants that it owns or is licensed all intellectual property rights in the information and/or materials provided and indemnifies Skunk Digital against any claim that may be made if the Client is in breach of this clause. The Client warrants that the information and/or materials provided is compliant with clause 22 of these Conditions.
6. Term of the services and automatic renewal
6.1 The Proposal will outline the Term for the Services to be provided by Skunk Digital to the Client, which Term will begin on the Start Date and end on the End Date unless cancelled earlier in accordance with clause 20.
6.2 The Term can be automatically renewed at any time by Skunk Digital advising the Client in writing of the extension of the Term, including the proposed extended term, pricing and payment detail. The Term will be automatically renewed in accordance with the terms of the written notice unless the Client advises Skunk Digital in writing within ten (10) Business Days of the date of such notice of automatic renewal that it does not wish for such automatic renewal of the Term to take place.
6.3 The terms of this Contract will apply to any extension of the Term.
7. No guarantee of success of the Services
7.1 Skunk Digital will exercise all due care and skill in performing the Services, but makes no warranty that the delivery of the Services will:
7.1.1 result in their website being highly ranked organically or their Google Ads being the first that appear;
7.1.2 result in an increase in the business (and profits of the business) of the Client;
7.1.3 result in an increase in the exposure of the brand of the Client;
7.1.4 increase the social media following of the Client;
7.1.5 result in an increase in sales as a result of the sales funnels created;
7.1.6 boost the public profile of the Client; or
7.1.7 result in the Client obtaining any other desired outcome.
7.2 Skunk Digital does not guarantee that Web Design Services, on their own, will result in higher rankings in search engines.
8. Websites
8.1 General
8.1.1 Skunk Digital does not warrant that any website it creates for the Client (Website) will be mobile responsive for all devices, nor does it guarantee that the website created will be suitable for every website browser.
8.1.2 Skunk Digital does not guarantee the integration, functionality and continual operation of third-party integrations, applications, plug-ins and software (Third Party Platforms) that are installed on the Website. Skunk Digital will not be responsible for any loss or damage suffered or incurred as a result of such failure in these Third-Party Platforms. The Client also acknowledges and agrees that their activities and use of these Third-Party Platforms may be subject to additional terms of service for each Third-Party Platform.
8.1.3 Skunk Digital does not warrant or guarantee that the Website created for the Client will include accessibility features or be compliant with any legal requirements to include accessibility features. The Client acknowledges and agrees that it will be up to the Client to ensure there are accessibility features on the Website, if required, and that it complies with any legal requirements in respect of accessibility features.
8.1.4 Skunk Digital recommends that the Client takes out their own insurance policy which covers cyber hacking and loss of business caused by any hacking or failure of the Client’s website.
8.1.5 Skunk Digital recommend that its Clients include on their Website a privacy policy and website terms of use, and Skunk Digital will not include these documents on the Website they produce unless these are provided by the Client.
8.1.6 It is the Client’s responsibility to ensure that the domain name for the Website is secured and that the Client continues to renew and pay for the renewal of such domain name. If the domain server fails, Skunk Digital is indemnified by the Client for any and all liability, loss or damage that may be suffered as a result of such failure.
8.1.7 If a Client has an existing website and they ask Skunk Digital, as part of the Services, to make amendments or upgrades to that website, then Skunk Digital does not guarantee that the amendments or upgrades they made will work and will not be liable for any failure of that website.
8.1.8 The Client gives Skunk Digital permission to access and use their information to third party services that are to be included on their website and to store any login credentials for that service.
8.1.9 Skunk Digital does not have any relationship with users of the Client’s website (End Users). Therefore, Skunk Digital is not responsible for how the Client handles information on the End Users. The Client is responsible to provide notification to their End Users, and to the relevant authorities if required, of any security breach.
8.1.10 Elements of the Website and Third-Party Platforms may automatically update from time to time, and the Client agrees to receive such updates.
8.1.11 The Client must not reverse engineer the software or website produced by Skunk Digital.
8.2 Building the Website
8.2.1 If the Client instructs Skunk Digital to transfer the contents of an old website to their new one, or to transfer their website in any manner, then the transfer of this website will be at the sole and absolute risk of the Client and if any data is lost through this process, then the Client will indemnify Skunk Digital for any resulting loss or damage as a result of the same.
8.2.2 The number of revisions of the draft website that will be offered by Skunk Digital to the Client will be outlined in the Proposal. If the Client wants further revisions or amendments made the website in excess of the number outlined in the Proposal then such revisions will be charged to the Client at Skunk Digital’s hourly rate, which hourly rate Skunk Digital will advise to the Client in writing before they proceed to work on such revisions.
8.2.3 If, during the build of the website, a critical error occurs through no fault of Skunk Digital, then the Client will indemnify Skunk Digital from any liability, loss or damage that occurs as a result of such critical error.
8.3 Handover of the Website
8.3.1 Once Skunk Digital has completed the creation of the Website, it will pass control of the Website over to the Client. From this point and on, Skunk Digital will no longer be involved in the maintenance, updating and operation of the Website. It will be up to the Client to continue to maintain and update the Website, and Skunk Digital will not be liable for any failure of the Website, or for any error caused by the Client failing to operate or update the Website correctly.
8.3.2 Once the Website is completed by Skunk Digital and handed over to the Client it will be owned by the Client, subject to Skunk Digital retaining intellectual property rights in the website design in accordance with clause 22.
8.3.3 After the Website is handed over to the Client, the Client will be responsible for all backup and security of the Website, and Skunk Digital will have no liability for this.
8.3.4 If the Client requires any amendments to be made to the website by Skunk Digital after the Website is handed over, then such works will be charged at Skunk Digital’s hourly rate, which Skunk Digital will advise to the Client in writing.
8.3.5 Skunk Digital will be in no way liable for any loss, damage, demand, liability, claim or expense made against the Client by any third party as a result of the way in which the Client uses the Website, including the content posted on the Website.
8.3.6 If the Client chooses to operate their own website(s), the Client is fully responsible for purchasing any third-party service or plug-in to accomplish this.
8.4 Ongoing works for websites produced by Skunk Digital
8.4.1 The Client can request that Skunk Digital provide ongoing services in respect of the website, which services will be agreed between Skunk Digital and the Client. Such service will be provided for the monthly fee as provided in writing from Skunk Digital to the Client.
9. Branding and corporate identity development
9.1 While Skunk Digital can assist the Client with branding and corporate identity development, including the development of a logo for the Client, it cannot guarantee that this will result in increased sales or business for the Client.
9.2 Skunk Digital will do its best to ensure that any logo designed for the Client does not impede on the intellectual property rights of any third party.
9.3 Skunk Digital will develop the branding and corporate identity of the Client based on the information and materials provided by the Client in accordance with clause 5.
9.4 Once Skunk Digital has created a logo for the Client:
9.4.1 it will transfer all ownership rights in the logo to the Client upon the invoice(s) issued to the Client documenting that these Services have been paid for in full;
9.4.2 if the Client requires Skunk Digital to sign any documents to effect clause 9.4.1, the Client must have these documents prepared at their own cost. If Skunk Digital is concerned with any terms of this documentation it may seek its own independent legal advice and will reserve its rights to pass this cost onto the Client; and
9.4.3 it is the Client’s responsibility to ensure that they do all that is necessary to secure their ownership rights in the logo, including registering any trade mark for the logo.
10. Google Ads
10.1 While Skunk Digital can prepare Google Ads for the Client, Skunk Digital cannot guarantee the number of clicks any Google Ad will receive, nor any results in general.
10.2 Skunk Digital will research the business of the Client and use high traffic keywords to create the Google Ad.
10.3 The Client’s website may affect the performance of the Google Ad, its positioning and conversions.
10.4 Google Ads will be charged per click, and the Client’s credit card will be provided for these charges to be made to as a disbursement in accordance with clause 15.
10.5 If there is a special offer made by the third-party advertisement engine promoter, Skunk Digital does not guarantee that such offer will be ongoing or continuous and such promotion will be in the control of the third party.
10.6 Any account established for the purpose of these advertisements will be an account owned and controlled by Skunk Digital.
10.7 When the Client cancels the Service or at the expiry of the Term, Skunk Digital will pause the account and paid advertisements and remove the credit card details of the Client after the last bill is issued for the paid advertisements to date.
10.8 Skunk Digital cannot control where a paid advertisement gets reposted.
10.9 Images used by Skunk Digital in any paid advertisements are to be royalty-free images and will either be stock pictures or pictures that are taken from Skunk Digital’s website or social media pages. The Client may also provide such images to Skunk Digital for its use. The terms of clauses 22.4 and 22.6 will apply to these images.
10.10 Any Google Ads account will be subject to the terms and conditions of Google.
10.11 The Client acknowledges that Google has the ability to reserve the right to refuse advertisements for any reason. In the event of such refusal the Client acknowledges and agrees that it will remain liable to pay the fees of Google as well as those of Skunk Digital.
10.12 The Client acknowledges that the Good Ads created by Skunk Digital is an intangible service.
11. Meta (formerly Facebook) Ads
11.1 While Skunk Digital can prepare Meta Ads for the Client, Skunk Digital cannot guarantee the number of clicks any Meta Ad will receive, the impressions or placement of the Meta Ad produced by Skunk Digital for the Client, or any results in general.
11.2 Skunk Digital will research the business of the Client and use high traffic keywords to create the Meta Ad.
11.3 The Client’s website may affect the performance of the Meta Ad, its positioning and conversions.
11.4 Meta Ads will be charged per click, and the Client’s credit card will be provided for these charges to be made to as a disbursement in accordance with clause 15.
11.5 The Client will need to provide Skunk Digital with access to its Facebook account for the purpose of creating and posting the Meta Ads.
11.6 Skunk Digital cannot control where a paid advertisement gets reposted.
11.7 Images used by Skunk Digital in any paid advertisements are to be royalty-free images and will either be stock pictures or pictures that are taken from Skunk Digital’s website or social media pages. The Client may also provide such images to Skunk Digital for their use. The terms of clauses 22.4 and 22.6 will apply to these images.
11.8 Any Facebook account and Meta Ads will be subject to the terms and conditions of Meta.
11.9 The Client acknowledges that Meta has the ability to reserve the right to refuse advertisements for any reason. In the event of such refusal the Client acknowledges and agrees that it will remain liable to pay the fees of Meta as well as those of Skunk Digital.
11.10 The Client acknowledges that the Meta Ads created by Skunk Digital is an intangible service.
12. Sales Funnel
12.1 Skunk Digital will do its best to ensure that the sales funnels it creates will result in sales for the Client, but it cannot guarantee the success of these sales funnels or any results in general.
12.2 Skunk Digital owns all intellectual property in its sales funnels works and has no obligation to show the Client what it does for the purpose of its sales funnel.
12.3 The Client acknowledges that the sales tunnel service provided is an intangible service.
12.4 In order for the sales funnel to work effectively, this will depend on the content of the Client’s website, the performance of any advertising undertaken by the Client (including, but not limited to, Google Ads and Meta (Facebook) Ads), and their SEO. Skunk Digital is not responsible for websites and SEO that are not created by them and which may result in the sales funnels being unsuccessful.
13. SEO
13.1 The Client acknowledges that SEO listings are organic, meaning there is no way to control how a page is listed through SEO, and SEO is merely a tool to help organic growth and listings of the Client’s website. Skunk Digital cannot guarantee any results in general related to the SEO service.
13.2 Skunk Digital may arrange for blogs to be published including links to the Client’s website, and information about their products or services to assist in the process of improving the Client’s SEO. This will result in back links being added to the Client’s website, which the Client approves of by instructing Skunk Digital to provide SEO services to them. Skunk Digital has no control over what these back links and blogs will contain nor can they control whether they will continue to stay live.
13.3 The Client understands that if their website is hacked, this may cause their SEO rankings to drop and this will be no fault of Skunk Digital.
13.4 Skunk Digital cannot control any negative SEO that a competitor may use against the Client and does not guarantee that they can remedy any negative SEO.
13.5 Skunk Digital owns all intellectual property in its SEO works and has no obligation to show the Client what it does for the purpose of its SEO.
13.6 When the Term expires or the Client cancels the Contract, Skunk Digital will not be responsible for the removal of any SEO or external links created.
13.7 The Client acknowledges that the SEO service provided is an intangible service.
13.8 If there is any amendment by third parties and their requirements of SEO, Skunk Digital does not guarantee that their SEO practices will mirror the same.
14. General limitation on liability
14.1 Skunk Digital shall not be liable for any guarantee, warranty or representation as to the quality, performance, and fitness for purpose or otherwise of any Services unless expressed in writing and any such warranty or representation shall be limited to its express terms.
14.2 None of the Implied Terms apply to any Contract except to the extent that they cannot be lawfully excluded.
14.3 Skunk Digital’s liability for breach of any provision of any such Contract or for breach of any Implied Terms which by force of law cannot be excluded from applying to any such Contract is limited at the option of Skunk Digital to repairing or re-supplying the Services which have been found defective, or, paying the cost of re-supplying the Services which have been found defective.
14.4 Skunk Digital is not liable in tort for any loss or damages suffered by the Client or by any third party.
14.5 In no circumstance whatsoever shall Skunk Digital be liable to the Client or to any third party for any Consequential Loss in connection with any Contract or Implied Terms and the Client will keep Skunk Digital fully indemnified against any claim made against Skunk Digital by the Client or a third party for Consequential Loss.
15. Disbursements
15.1 Any disbursements incurred by Skunk Digital in providing the Services to the Client (Disbursements) will be due and payable by the Client and will be in addition to the price of the Services provided by Skunk Digital unless otherwise advised in writing.
15.2 Skunk Digital may require such Disbursements, whether estimated or actual pricing, to be paid for in part or in full before Skunk Digital incurs any Liability for the Disbursements.
15.3 Skunk Digital may, from time to time, require the Client to provide their credit card details to be entered online to the relevant supplier of services to facilitate advertisement spend, like Google Ads, for the ongoing payment of their third-party fees. Skunk Digital has no liability to pay any amounts for advertisement spend. Where the Client provides credit card details to Skunk Digital, Skunk Digital will ensure that these details are used only for the purpose of entering them online to arrange the ongoing payments to be taken by direct debit and once these credit card details have been entered online such credit card details will be destroyed by Skunk Digital. The Client must ensure that this credit card always has funds available for the payment of these fees, and if the credit card is declined for any reason whatsoever Skunk Digital will advise the Client of the same and the Client will be required to provide new credit card details within 48 hours of such communication.
15.4 The Client irrevocably authorizes Skunk Digital to provide their information, including their credit card information, to the third-party suppliers for the purpose of this Contract, and the Client indemnifies and releases Skunk Digital in respect of any claim or liability that arises from any fraud or misuse of their credit card details that occurs through no fault of Skunk Digital.
15.5 The Client must indemnify Skunk Digital against all Liabilities incurred as a result of any failure by the Client to reimburse Skunk Digital for Disbursements under this clause.
15.6 Skunk Digital will not be liable to the Client for any price amendment of any third party, and if a third party amends their pricing, then the Client must pay this new pricing.
16. Payment
16.1 Skunk Digital reserves the right to charge the Client for costs incurred resulting from the Client varying its instructions, correcting any errors or omissions referred to in clause 16.2, or requiring Services urgently.
16.2 Skunk Digital will supply the Services on the basis of the Proposal and the information provided by the Client. Skunk Digital will not be responsible for any errors or omissions resulting wholly or partially from incomplete or unclear instructions or information provided by the Client.
16.3 The Proposal will specify the proposed payment terms between Skunk Digital and the Client.
16.4 All amounts payable to Skunk Digital by the Client must be paid in U.S. dollars (USD), unless otherwise specified in the invoice issued by Skunk Digital, in any manner required by Skunk Digital in writing and in full without set-off on or before the due date for payment.
16.5 Any costs or charges incurred by Skunk Digital in collecting or attempting to collect overdue amounts must be paid by the Client to Skunk Digital on demand.
16.6 Skunk Digital reserves the right to charge interest at the rate of 12% per annum on all overdue amounts owing to it. Such interest will accrue daily and is payable on demand.
16.7 Payment will not be taken to occur until all checks tendered or electronic funds transfer in discharge of amounts owing to Skunk Digital have been presented or received and cleared in full.
17. Administration Fee
Skunk Digital reserves the right to charge the Client a reasonable administration fee for issuing any duplicate invoices, statements, or other documents requested by the Client, where such document has previously been provided by Skunk Digital.
18. Proposal & Quotation
18.1 Subject to clause 5.3, all Quotations are valid for 30 days from the date of Proposal.
18.2 Skunk Digital reserves the right to charge the Client for any costs incurred as a result of the Client varying its Quotation or the Contract, correcting any errors or omissions referred to in clause 16.2, or requiring Goods urgently.
18.3 Skunk Digital will supply the Services on the basis of the Proposal (whether written or oral). Skunk Digital will not be responsible for any errors or omissions in relation to the Services where those errors or omissions result wholly or partially from incomplete or unclear instructions provided by the Client.
18.4 The Proposal will outline any exclusions from the Services.
19. Cancellation/Termination
19.1 Skunk Digital may cancel any Contract any time before Services are provided by giving written notice to the Client. On giving such notice, Skunk Digital will repay to the Client any sums paid in respect of the Services. Skunk Digital will not have any other liability in respect of such cancellation.
19.2 The Client may terminate the Contract only in the following circumstances:
19.2.1 by providing thirty (30) days-notice in writing of such termination;
19.2.2 at any time except with Skunk Digital’s prior written consent.
19.3 Nonpayment of Fee to initiate a new Term will result in termination of the Contract.
19.4 In the event that the Client cancels a Contract:
19.4.1 Skunk Digital may retain any deposit or other sums paid on account of the Services; and
19.4.2 if payment is not already made in full, the Client will be responsible for any losses incurred by Skunk Digital in respect of such cancellation (including loss of profits, loss of anticipated savings, economic loss or interruption of business loss or other incidental, consequential or indirect damages).
19.5 In the event the Client cancels a Contract, Skunk Digital will repay to the Client any sums paid in respect of the Services. Skunk Digital will not have any other liability in respect of such cancellation.
20. Suspension or termination of services by Skunk Digital
20.1 If the Client makes a default in any payment due to Skunk Digital, commits any act of bankruptcy or enters into liquidation whether voluntary or involuntary, Skunk Digital may in its absolute discretion, suspend supply of any Services to the Client or cancel any Contract with the Client, without prejudice to any other rights of Skunk Digital.
20.2 No default by the Client or action taken by Skunk Digital under clause 21.1 will prejudice any rights of Skunk Digital against the Client whatsoever, including any right to recover any amounts due for Services previously provided by Skunk Digital to the Client.
21. Confidential Information
21.1 The Recipient agrees in favor of the Provider that during the term of this Contract, and after the expiration of this Contract, that all Confidential Information provided to the Recipient or of which the Recipient becomes aware as a result of this Contract:
21.1.1 will be kept strictly confidential;
21.1.2 will not without the Provider’s consent:
21.1.2.1 be disclosed or divulged to any third party;
21.1.2.2 will not be copied or reproduced;
21.1.2.3 will not be used for any purpose or enterprise other than for the purpose of this Contract;
21.1.3 will be safely and securely stored when not in use; and
21.1.4 will remain the absolute and exclusive property of the Provider.
21.2 This duty of confidence does not extend to Confidential Information:
21.2.1 which is known to the Recipient at the date of this Contract; or
21.2.2 which comes into the public domain after the date of the Contract otherwise than as a result of a breach of the Contract by the Recipient; or
21.2.3 which is disclosed to the Recipient by a third party with the right to do so or which is required by law to be disclosed, provided that the Recipient notify the Provider as soon as such Confidential Information becomes known to the Recipient; or
21.2.4 which is disclosed by the Recipient as required by law.
21.3 The Recipient bears the onus of proof of the matters referred to in clause 22.2.
21.4 The Recipient must bind its Authorized Persons, employees, and permitted agents and subcontractors (if any) who have access to the Confidential Information to comply with all the Recipient’s obligations under this clause.
21.5 The Recipient must indemnify the Provider against all Liabilities in respect of any breach of this clause 21 by the Recipient or any Authorized Persons, employees or permitted agents or subcontractors of the Recipient.
22. Intellectual Property
22.1 Pre-Existing Intellectual Property
Notwithstanding any other clause of this Contract, the ownership of the Intellectual Property Rights in any item which exists prior to the commencement, or is created independently, of this Agreement (Pre-Existing IP) will not be altered, transferred or assigned merely by virtue of a party using that item for the purposes of this Contract.
22.2 License to use Pre-Existing IP
To the extent that the Pre-Existing IP owned by Skunk Digital is incorporated into the provision of any Services, in accordance with this Contract, unless those items are licensed to the Client under a separate agreement with Skunk Digital, Skunk Digital grants a non-exclusive, world-wide, royalty-free license to the Client to use the Pre-Existing IP, but only to the extent necessary for the purpose of obtaining the full benefit and use of the Services as contemplated by this Contract, and only for the Term, unless agreed to otherwise by Skunk Digital.
22.3 Ownership of what is created in the provision of the Services
Unless stated to the contrary in writing, Skunk Digital:
22.3.1 assigns to the Client the Intellectual Property Rights in any materials created as part of the Services (and in all research and reports commissioned by the Client and used to support or provide the Services) and acknowledges that the Client will be the owner of such materials immediately upon their creation;
22.3.2 must ensure that the Intellectual Property Rights in any materials created as part of the Services by any third party on its behalf are assigned to Skunk Digital immediately on their creation, so as to enable Skunk Digital to comply with and give effect to the assignment under this clause;
22.3.3 consents to all acts or omissions by or on behalf of the Client that might otherwise constitute an infringement of moral rights in the materials produced as part of the Services.
This clause 22.3 does not apply to any part of the Services that is Pre-Existing IP.
22.4 License to the Client’s Intellectual Property
The Client grants a perpetual, non-exclusive, world-wide, non-transferrable, royalty free-license to Skunk Digital (including the right to grant sub-licenses) in respect of:
22.4.1 the Client’s Intellectual Property Rights in or in relation to any information or materials provided by the Client to Skunk Digital for the provision of the Services, but only to the extent necessary for the purpose of providing the Services as contemplated by this Contract; and
22.4.2 the Intellectual Property Rights in or in relation to any information or materials created by Skunk Digital and which is assigned to the Client pursuant to clause 22.3, with the authority to use the information or materials produced in providing services to other clients (provided such use does not infringe the Client’s Intellectual Property Rights, which are licensed pursuant to clause 22.4.1).
22.5 Warranties by Skunk Digital
Skunk Digital warrants that neither:
22.5.1 the provision of the Services by Skunk Digital; or
22.5.2 the exercise of any rights under clause 22.2,
will infringe any Intellectual Property Rights of any third party.
22.6 Warranties by the Client
The Client warrants that neither:
22.6.1 the provision of the information and materials supplied by the Client or the Client’s Intellectual Property for the Services; or
22.6.2 the exercise of any rights under clause 22.4,
will infringe any Intellectual Property Rights of any third party.
23. Place of Contract
This Contract is made in the state of Arizona in the United States of America.
24. Dispute Resolution
24.1 Any dispute between the parties arising from the performance of the provisions of this Contract and any invoice for payment issued by Skunk Digital to the Client must be attempted to be settled between the parties by an authorized representative with authority from each party meeting within fourteen (14) days of notification of a dispute in writing from one party to the other party. Such meeting is to take place within the state of California at a place nominated by Skunk Digital.
24.2 First Step: Mediation. If the meeting referred to in clause 24.1 does not result in the settlement of the dispute between Skunk Digital and the Client, the dispute shall be submitted to mediation in accordance with the rules and procedures of American Arbitration Association. The costs of any mediation are to be borne equally between the parties.
24.3 Arbitration. If mediation is not successful in resolving all disputes arising out of this agreement, those unresolved disputes shall be submitted to final and binding arbitration. The arbitrator shall be selected in accordance with the rules of American Arbitration Association. If such services are not available, the dispute shall be submitted to arbitration in accordance with the laws of the State of California. The arbitrator’s award shall be final, and judgment may be entered upon it by any court having jurisdiction thereof.
24.4 During the period in which the dispute is being resolved, the parties must continue to perform all of the provisions of the Contract which are not under dispute.
25. Miscellaneous
25.1 A Contract may be altered in writing signed by each party.
25.2 Unless otherwise provided, a party may in its discretion give (conditionally or unconditionally) or withhold any approval or consent under a Contract.
25.3 The Client must not assign or otherwise deal with a Contract or any right under it without the written consent of the other party.
25.4 A Contract constitutes the entire agreement between the parties about its subject matter and supersedes any prior understanding, agreement, condition, warranty, indemnity or representation about its subject matter.
25.5 A waiver of a provision of or right under a Contract must be in writing signed by the party giving the waiver and is effective only to the extent set out in the written waiver.
25.6 The failure, delay, relaxation or indulgence by a party in exercising a power or right under a Contract is not a waiver of that power or right.
25.7 An exercise of a power or right under a Contract does not preclude a further exercise of it or the exercise of another right or power.
25.8 Each indemnity, obligation of confidence and other term capable of taking effect after the expiration or termination of a Contract, remains in force after the expiration or termination of the Contract.
25.9 The Client agrees that Skunk Digital reserves the right to use Client’s finished product(s) as testimonials to prospective clients.
25.10 Skunk Digital reserves the right to employ outside contractors to complete their service.
26. Interpretation
In these Conditions, unless the context otherwise requires:
26.1 headings do not affect interpretation;
26.2 singular includes plural and plural includes singular;
26.3 a reference to a party includes its executors, administrators, successors and permitted assigns;
26.4 a reference to a person includes a partnership, corporation, association, government body and any other entity;
26.5 an agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
26.6 an agreement, representation, warranty or indemnity in favor of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
26.7 a reference to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it;
26.8 a provision is not construed against a party only because that party drafted it;
26.9 an unenforceable provision or part of a provision may be severed, and the remainder of these Conditions continues in force, unless this would materially change the intended effect of these Conditions;
26.10 the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions.
