Service Agreement – Website Design

THIS TERMS OF SERVICE AGREEMENT (this “Agreement”) is made and entered into as of the date that a customer has paid in partial or full an invoice from Black Mountain Media that contains “Website Package”.

WHEREAS, Consultant is recognized as Marketing Consulting and Managed Marketing Services; and

WHEREAS, the Client desires to retain Black Mountain Media to provide services related to and in support of efforts in which Black Mountain Media has expertise;

NOW, THEREFORE, in consideration of the premises and the mutual conditions and promises herein contained, the parties here to agree as follows:

  1.   Consulting Services.
    Black Mountain Media shall furnish the Client with his best advice, information, judgment and knowledge with respect to:

    Website Design Services outlined in the invoice provided:

    1. Term. The term of this Agreement shall begin on the day the first payment has been made and shall, subject to the provisions for termination set forth herein, continue until termination.
    2. Compensation. The Consultant will be paid as per the invoice amount.

Project deadline is four weeks (28 days) after the first payment has been made. Black Mountain Media will do everything in their ability to complete the project by this date. Should the project become delayed by the client past this date, the final amount due will be on this date regardless.

  1.   Confidential Information and Intellectual Property.
    1. Black Mountain Media shall maintain in strict confidence, and not use or disclose except pursuant to written instructions from the Client, any Trade Secret (as defined below) of the Client, for so long as the pertinent data or information remains a Trade Secret, provided that the obligation to protect the confidentiality of any such information or data shall not be excused if such information or data ceases to qualify as a Trade Secret as a result of the acts or omissions of Consultant.
    2. Black Mountain Media shall maintain in strict confidence and, except as necessary to perform his duties hereunder, not to use or disclose any Confidential Business Information (as hereinafter defined) during the term of this Agreement and for a period of one (1) year thereafter.
    3. Consultant may disclose Trade Secrets or Confidential Business Information pursuant to any order or legal process requiring the disclosing party (in its legal counsel’s reasonable opinion) to do so, provided that the request or order to so disclose the Trade Secrets or Confidential Business Information in sufficient time to allow the Client to seek an appropriate protective order.
      1. “Trade Secret” shall mean any information, including, but not limited to, technical or non- technical data, a formula, a pattern, a compilation, a program, a plan, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. “Confidential Business Information” shall mean any non-public information of a competitively sensitive or personal nature, other than Trade Secrets, acquired by Consultant in connection with performing services for the Company, including (without limitation) oral and written information concerning the Company’s financial positions (revenues, margins, assets, net income, etc.)), annual and long-range business plans, account invoices, oral or written customer information, and personnel information. Sharing information related to managed marketing services in section 1 of this agreement does not constitute a breach of clause 4(B) of this agreement.
        1. All original works of authorship that result from the performance by Black Mountain Media of their duties hereunder, are deemed to be “works made for hire” under the copyright laws of Canada, and will be and will remain the sole and exclusive property of the Client. Black Mountain Media, at the Client’s request and sole expense, will assign to the Client in perpetuity all proprietary rights that he may have in such works of authorship. Such assignment shall be done by documents as prepared by the Client. Should the Client elect to register claims of copyright to any such works of authorship, Black Mountain will, at the expense of the Client, do such things, sign such documents and provide such reasonable cooperation as is necessary for the Client to register such claims, and obtain, protect, defend and enforce such proprietary rights. Black Mountain Media shall have no right to use any trademarks or proprietary marks of the Client without the express, prior written consent of the Client regarding each use.
        2. The existence of any claim or cause of action that Black Mountain Media may have against the Client will not at any time constitute a defense to the enforcement by the Client of the restrictions or rights provided by this Section 5, but the failure to assert such claim or cause of action shall not be deemed to be a waiver of such claim or cause of action.
        3. For purposes of this Section 5, “Client” shall include the Client and all of its direct and indirect subsidiaries and any predecessors of the Client.
  1.   Termination.
    This Agreement may be terminated by either party upon written notice if the other party breaches any of its obligations hereunder and the breaching party fails to cure such breach within thirty (30) days after receipt of notice of such breach. If the Client chooses to terminate the contract for any reason they may do so upon 30 days written notice to the Black Mountain Media.

    1. Providing this contract is a monthly fee for services provided, Client is required to provide 30 days’ notice before termination, if 30 days written notice is not provided the Black Mountain Media is entitled to one month’s payment.
    2. Providing this contract is a paid per benchmark completed, Client is required to provide 30 days’ notice before termination, Any work completed in the middle of a benchmark will be calculated and billable to the client. At this point a bill will be issued and either payment due or a refund issued depending on where the work was completed within it’s benchmark.
  1.   Severable Provisions.
    The provisions of this Agreement are severable, and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially enforceable provision to the extent enforceable in any jurisdiction, shall nevertheless be binding and enforceable.
  2.   Binding Agreement.
    The rights and obligations of the Client under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Client.
    The rights, obligations and duties of Consultant hereunder may not be assigned or delegated without the Client’s prior written consent.
  3.   Relationship of Parties.
    The Client and Black Mountain Media are independent contractors. Both parties acknowledge and agree that Black Mountain Media’s engagement hereunder is not exclusive and that either party may provide to, or retain from, others similar such services provided that it does so in a manner that does not otherwise breach this Agreement. Neither party is, nor shall claim to be, a legal agent, representative, partner or employee of the other, and neither shall have the right or authority to contract in the name of the other nor shall it assume or create any obligations, debts, accounts or liabilities for the other.
  4.   Notices.
    Any notices or other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given and delivered when delivered in person, two (2) days after being mailed postage prepaid by certified or registered mail with return receipt requested, or when delivered by overnight delivery service or by facsimile to the recipient at the following address or facsimile number, or to such other address or facsimile number as to which the other party subsequently shall have been notified in writing by such recipient.
  5. Waiver.
    Either party’s failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a waiver of any such provision or provisions as to future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted the parties herein are cumulative and the waiver by a party of any single remedy shall not constitute a waiver of such party’s right to assert all other legal remedies available to him or it under the circumstances.
  6. Governing Law.
    This Agreement will be governed by and interpreted in accordance with the substantive laws of the Province of British Columbia, Canada without reference to conflicts of law.
  7. Captions and Section Headings.
    The various captions and section headings contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of any of the provisions of this Agreement.
  8. Entire Agreement.
    With respect to its subject matter, this Agreement and its Exhibits constitute the entire understanding of the parties superseding all prior agreements, understandings, negotiations and discussions between them whether written or oral, and there are no other understandings, representations, warranties or commitments with respect thereto.