This Service Agreement (the “Agreement”) outlines the terms and conditions under which BLACK & WHITE ZEBRA INDUSTRIES INC. (“we”, “us” or “our”) agrees to provide you with certain services (the “Services”) more specifically described herein and in an online order form or an invoice to which this Agreement is referenced (the “Order Form”). To the extent of any conflict between the Order Form and this Agreement, this Agreement will prevail.
BY SUBMITTING AN ORDER FORM OR OTHERWISE MAKING PAYMENT TO US FOR THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT:
- SERVICE SUMMARY. We are in the business of creating content that is presented wholly or partly in the form of:
- a list (each, a “Listicle”);
- a comparing article;
- an alternatives article; or
- an in-depth review article;
(collectively, the “Content”).
When you engage us to provide you with the Services, you will confirm your product or service for promotion (the “Specified Product”), the Content through which you wish to promote such Specified Product (the “Specified Content”), the total budget you wish to spend for such promotion (the “Total Budget”), and the cost per click you wish to set for such promotion (the “CPC Amount”). We will require full payment of the Total Budget, plus any applicable taxes (all amounts payable being, the “Fees”), prior to the Services being provided. We will have no obligation to provide any Services prior to full payment of the Fees. The Fees are non-refundable and non-transferrable to other Services or Content. The Specified Product will be listed and/or ranked in the Specified Content in accordance with the CPC Amount set. By way of example, in a Listicle we will list and rank the products and services from first to last to correspond with the highest to lowest CPC Amount. We reserve the right, in our sole discretion, to determine what information to include or omit regarding the Specified Product. Unless you have re-engaged us to provide the Services under a new order form and service agreement, the Specified Product will be removed from the Specified Content on the earlier of: (i) the Total Budget being spent; and (ii) the Specified Product being listed on the Specified Content for one (1) year. If any two products or services have an equal CPC Amount, the product or service with the highest balance remaining from the Total Budget will be listed and/or ranked higher than the other in the Specified Content. We do not disclose CPC Amounts or Total Budgets of any one customer to any other customer or the public.
- PAY PER LEAD. We may also offer certain pay per lead arrangements, which will be subject to the terms and conditions of this Agreement and a separate opt-in agreement between you and us (the “Opt-In Agreement”). To the extent of any conflict between the provisions of this Agreement and the Opt-In Agreement, the provisions of the Opt-In Agreement will prevail.
- MARKETING COMMUNICATIONS. You hereby consent to receive marketing communications from us via email, or any other form of communication, from time to time. You may opt-out at any time from such communications by emailing us. You hereby consent to our retaining and storing any personal information provided in the Order Form or through the Services, such as name, address, telephone number and purchasing information, for the purpose of: (a) delivering the Services; (b) conducting internal reviews and improvements relating to the Services; and (c) keeping a record of our legal obligations.
- INTELLECTUAL PROPERTY OWNERSHIP. Except as expressly provided herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, you own all intellectual property rights in the content and data you submit to us (collectively, the “Customer Data”), and we own all intellectual property rights in the Services and any website owned and operated by us in connection with the Services (with any data, information and materials relating thereto). You grant us a limited, non-exclusive, worldwide, royalty-free license to use the Customer Data for the purpose of providing you the Services. We will retain and will own a copy of any non-personally identifiable or aggregated information and/or data generated and/or collected by us through your use of the Services.
- DISCLAIMER. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND WE HEREBY DISCLAIM ANY AND ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INTERRUPTION, SUITABILITY, UPTIME, QUALITY, ACCURACY, CLICK PERFORMANCE, LEAD GENERATION OR SALES RESULTS, SITE SPEEDS, TRAFFIC RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE. FOR CERTAINTY, WE MAKE NO WARRANTY OR GUARANTEE WITH RESPECT TO THE RESULTS OF YOUR USING THE SERVICES.
- RELEASE & INDEMNIFICATION. YOU HEREBY RELEASE AND FOREVER DISCHARGE US, AND OUR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, AGENTS AND ASSIGNS (THE “RELEASED PARTIES”) OF AND FROM ANY AND ALL ACTIONS, LIABILITIES, DAMAGES, LOSSES, CLAIMS, AND DEMANDS (“CLAIMS”) OF ANY KIND WHATSOEVER AND HOWSOEVER ARISING, WHICH YOU CAN, WILL OR MAY HAVE IN CONNECTION WITH OR ARISING FROM THE SERVICES, EXCEPT IN CONNECTION WITH A MATERIAL BREACH BY US OF THE TERMS AND CONDITIONS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND IN SUCH CASE, CLAIMS WILL BE LIMITED TO DIRECT DAMAGES ONLY UP TO THE TOTAL BUDGET FOR SUCH RELATED ORDER FORM. YOU HEREBY AGREE TO DEFEND, INDEMNIFY, SAVE AND HOLD THE RELEASED PARTIES HARMLESS AGAINST AND FROM ANY AND ALL THIRD-PARTY CLAIMS INCURRED OR SUFFERED BY THE RELEASED PARTIES AS A RESULT OF THE CUSTOMER DATA YOU PROVIDE US.
- DISPUTE RESOLUTION. The provincial and federal courts located in Vancouver, British Columbia will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. However, if the parties are unable to resolve any dispute arising from this Agreement, the parties will first attempt to settle the dispute in good faith through mediation by a single mediator mutually selected by the parties. The parties will share the costs of the mediator equally.
- GENERAL. This Agreement will be governed and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver. This Agreement, with the Order Form, constitutes the entire agreement with respect to the subject matter contained herein and there are no other terms, conditions, representations, warranties, or collateral agreements, express or implied. The invalidity or unenforceability of any provisions of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, which will remain in full force and effect. The parties are independent contractors, and this Agreement does not create a partnership, joint venture, agency, fiduciary or employment relationship. If we are prevented from or interfered with in any manner whatsoever, or otherwise delayed, in performing the Services or any other obligations hereunder, by reason of any event beyond our reasonable control, then our non-performance will not be deemed a breach of this Agreement provided that notice is given to you without delay, and our obligations hereunder will be extended by such reasonable amount of time determined by us in good faith. Any notice, report or other communication required or permitted to be given by us will be deemed to have been received if sent to your email address set out in the Order Form. This Agreement may not be assigned by you. We may assign this Agreement at any time and from time to time upon delivery of notice to you. This Agreement will enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
THE TERMS AND CONDITIONS PROVIDED IN THIS AGREEMENT WILL APPLY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW AND FORM AN ESSENTIAL CONDITION FOR OUR PROVIDING THE SERVICES.