Digital Services Agreement

This Digital Services Agreement (“Agreement”) is made and entered into between Purchasing Company (“Owner”) or (“Business”) and Common Sense Web Marketing, Inc and/or Happy Customer Reviews (“Developer”).

            Owner has agreed to engage Developer to manage, maintain, design or develop the services described on the Developer website shopping cart or sign up form for Owner.  Developer has agreed to manage, maintain, design or develop the services selected by Owner on the Company website sign up form in accordance with the terms of this Agreement.

In exchange for good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, Owner and Developer agree as follows:

1. 1.               Developer’s Responsibilities.  Developer agrees to manage, setup, maintain, design or develop the selected digital services in accordance with (a) the specifications which are set forth in this Agreement, and the other instructions and materials provided by Owner from time-to-time during the terms of this Agreement (the “Specifications”), and (b) the development schedule set forth according to the verbally or written agreed development period and the product services as stated on the Developer’s website. 

• 2.               Product Selection. 

1. a.                Design.  The design of the product selected shall be in substantial conformity with the Specifications.  Developer shall develop the product selected by Owner to project the highest professional image.

• b.               Materials Provided by Owner.  All materials, text, graphics and other content for the product development to be supplied by Owner (the “Owner Content”) or provided by Developer. Files will be provided in HTML format, standard word processing text format, or, if images, digitally in TIFF, GIF, JPEG, or PNG format.  Owner agrees to provide all Owner Content within a reasonable time for Developer to timely meet the requirements of the agreed Development Schedule or as otherwise specified by verbal or stated terms. 

c. Domain Name.  Website(s) shall either have the domain name provided by Owner (the “Domain Name”) or by the Developer.  Owner shall register the Domain Name, of which, the Owner shall retain ownership of the domain name. If the Developer has provided the domain name, the domain name shall remain the property of Developer. Whoever is the provider of the domain name, the provider of the domain name shall be listed as the registrant, and administrative and technical contact for the Domain Name.  If, by agreement of the parties, Developer is listed as the registrant or technical or administrative contact for the Domain Name, then upon any termination of this Agreement for any reason, Developer shall retain the ownership of the domain name and take all action necessary to maintain the name of registrant and the technical and administrative contact information for the Domain Name to Owner or designee of Owner upon termination of this Agreement. 

d. Fees.  Owner agrees to pay Developer the amounts and in accordance with the payment terms set forth on the product sign up on the Developer website. If there is a dispute with regard to whether work was actually completed or whether an invoice is properly payable, the amount of the invoice in dispute shall not be due until proof of work is submitted to the Owner. Each of the products on the Developer website are payable by a monthly reoccurring payment as set forth on the Developer website and will have a startup cost of your first and last monthly payment, unless a discount is provided. If a monthly payment is declined, the Developer shall continue to attempt to collect the balance due either by automated payment portal or by contacting the Owner for a different payment option. If a payment is more than 30 past due, the Developer has the right to suspend their provided digital services supplied to the client until the balance on the account is current.

e. Expenses.  Except as expressly agreed otherwise in writing by Owner, Developer shall bear all of its own expenses arising from its performance of its obligations under this Agreement.  Owner shall have no obligation to provide office space, work facilities, equipment, clerical services, programming services, or the like. 

• 3.               Confidential Information. 

Developer acknowledges that Owner may have access to information of Developer that is considered by Developer to be confidential or proprietary including, without limitation, including all intellectual property rights, trade secrets, software programming, mobile app source codes, copyrights, customer lists, and customer information (“Confidential Information”).  Confidential Information does not include information that (a) has been made public by an act or omission by a party other than Owner; (b) Owner receives from an unrelated third party without restriction on disclosure and without breach of a nondisclosure obligation; (c) Owner knew prior to receiving such information; or (d) Owner develops independently without use of Confidential Information.  Owner agrees to maintain as confidential and not disclose the Confidential Information to any third party and will not use any Confidential Information for any purpose other than for the performance of its obligations under this Agreement.  Owner agrees to use all reasonable efforts to prevent any unauthorized disclosure of Confidential Information disclosed by Developer under this Agreement. Developer shall immediately notify Owner upon discovery of any unauthorized use or disclosure of Confidential Information, or any other breach of this Agreement, and will cooperate with Owner in every reasonable way to regain possession of the Confidential Information and prevent its unauthorized use. The Owner likewise shall immediately notify Developer upon discovery of any unauthorized use or disclosure of Confidential Information, or any other breach of this Agreement, and will cooperate with Developer in every reasonable way to regain possession of the Confidential Information and prevent its unauthorized use.

• 4.               Ownership of Content. 
• Developer acknowledges and agrees that all Owner provided Content is a proprietary, original work of authorship of Developer, or licensed or assigned to Developer, and is protected under United States copyright, trademark, patent and trade secret laws of general applicability.  Developer further acknowledges and agrees that all right, title, and interest in and to the Owner Content, and any portion of the Owner Content, together with all modifications, enhancements, and derivative works of the Owner Content, whether or not made by Developer, including all copyright rights, are and shall remain with Owner or its licensors. The Owner acknowledges and agrees that all Developer provided Content is a proprietary, original work of authorship of Developer, or licensed or assigned to Developer, and is protected under United States copyright, trademark, patent and trade secret laws of general applicability.  Owner further acknowledges and agrees that all right, title, and interest in and to the Developer Content, and any portion of the Developer Content, together with all modifications, enhancements, and derivative works of the Developer Content, whether or not made by Developer, including all copyright rights, are and shall remain with Developer or its licensors. Developer agrees to assign and transfer and does hereby irrevocably assign and transfer to Owner any and all right, title, and interest, including all copyright rights and other intellectual property rights, and all actions and causes of action related to the foregoing, and all damages, profits, and other recoveries related thereto, which Developer may have received from Owner during the product development stage which was Owner supplied covered under this agreement.  

• 5.                Trademarks.  
• Owner grants to Developer a limited, non-exclusive, revocable license to use the trademarks of Owner solely for use on the purchased products as stated in the online sign-up form on the Developer’s website by Owner.  Developer agrees and acknowledges that the license of the Owner’s trademarks is made without any representations or warranties of any kind or nature.  Owner does not make any representations or warranties regarding title to any Owner trademark, the rights of any other persons or entities to the Owner trademarks, or with regard to the enforceability of any rights to any Owner trademark.  Except as provided in this Section 9 of this Agreement, no other right is granted to Developer under this Agreement with respect to any trademarks of Owner.  Developer agrees that it will not file any applications, reverse engineer, copy trade secrets, transfer to another party, attempt to develop a copy or like copy for use by Owner and any entity contracted by Owner or assert any rights to any of Developer’s trademarks, patents, trade secrets or software in the United States, or any other country or territory.

• 6.               Ownership of Deliverables.

1. a.                Owner and Developer intend that, except as set forth below, all elements of all Deliverables shall be exclusively owned by Developer, of which, shall exclusively own all copyrights and all other intellectual property rights in the Deliverables.  Accordingly, Owner agrees that with the exception of Owner owned and provided digital properties, that all  Developer created properties, all rights, title, and interest, including all copyright rights and other intellectual property rights, and all actions and causes of action related to the foregoing, and all damages, profits, and other recoveries related thereto, which Developer may have or acquire in development process and to any and all Deliverables, belongs to Developer, with the exception of Owner provided assets, pictures, domain names, copy written material and/or published material owned by Owner, which was provided to Developer by Owner as part of this agreement. Such rights, title, and interest shall be deemed assigned as of the moment of creation without the necessity of any further action on the part of either party. 

• b.               Developer will make diligent work in completing the products which Owner has selected. However, Owner must keep in mind that some of the process of development of purchased service will rely upon Owner’s participation in regards to granting access to Owner’s digital properties, providing business information or material in which is needed to complete the purchased products. In the event for any reason, after reasonable effort, Owner fails to execute or deliver to Developer the access to any digital property, business information or material owned by or under control of Owner, Developer is entitle to retain any payments made by Owner and Owner is not entitled to a refund of monies paid to Developer. Owner hereby waives any and all claims, of any nature whatsoever, which Developer now or may hereafter have for infringement of the Deliverables assigned to Developer under this Agreement which are supplied by Owner.

• 7.               Copyright Notices.  Developer shall include on any Website or digital property which is owned by Owner any and all copyright or other notices as requested by Owner. Owner agrees to allow Developer to place a link to Developer’s website along with the Developer name.

• 8.               Work by Developer.  Except for any co-developer who is engaged by Owner to co-develop the purchased product(s) with Developer, no individuals or entities other than Developer and Developer’s employees, contracted developers or subcontractors shall undertake any work in connection with this Agreement. 

• 9.               Indemnification/No Infringement.  In performing services under this Agreement, Developer and Owner agrees not to design, develop, or provide to each other any items, including any Deliverables, that infringe any patents, copyrights, trademarks or other intellectual property rights, including privacy, or other rights of any person or entity.  If Developer becomes aware of any such possible infringement in the course of performing any work hereunder, Developer shall immediately substitute or delete said infringement at their discretion.  Developer agrees to indemnify, defend, and hold Owner, its officers, directors, members, employees, representatives, agents, and the like harmless for any such alleged or actual infringement of the rights of a third party, including any patent, copyright, trademark, trade secret, privacy, or other intellectual property or proprietary rights, and for any liability, debt, or other obligation arising out of or resulting from any breach by Developer of this Agreement, performance or failed performance under this Agreement, or use of any Deliverables containing said encrochments.  This indemnification shall include Developer’s and Owner’s attorney fees and expenses.  Owner shall have the right, at its option, to control its own defense and engage counsel acceptable to Owner.
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• 10.            Developer’s Representations and Warranties.  Developer represents and warrants to Owner as follows:

1. a.                No Conflict.  Owner understands and agrees that Developer could be currently working on one or more similar works for other customers at the same time.  Provided that those works do not interfere or conflict with Developer’s obligations under this Agreement, those works shall not constitute a violation of this Agreement by Developer.

• b.               Ownership Rights. 
• (1) Developer is and will be the sole author of all works employed by Developer in preparing any and all Deliverables other than Preexisting Works; (2) Developer has and will have full and sufficient right to assign or grant the rights and/or licenses granted in the Deliverables pursuant to this Agreement; (3) all Deliverables other than Preexisting Works have not been and will not be published under circumstances that would cause a loss of copyright therein; and (4) all Deliverables, including all Preexisting Works, do not and will not infringe any patents, copyrights, trademarks or other intellectual property rights, including trade secrets, privacy, or similar rights of any person or entity, nor has any claim, whether or not embodied in an action, past or present, of such infringement been threatened or asserted, nor is such a claim pending against Developer or, insofar as Developer is aware, against any entity from which Developer has obtained such rights.

• c.  Conformity, Performance, and Compliance. 
• (1) all Deliverables shall be prepared in a workmanlike manner and with professional diligence and skill; (2) all Deliverables will function under standard HTML and/or PHP conventions, unless provided by an outside source from either party; (3) all Deliverables will conform to the specifications and functions set forth in this Agreement; and (4) Developer will perform all work under this Agreement in compliance with applicable laws.  Developer will repair any Deliverable that does not meet this warranty within a reasonable period of time if the defect affects the usability of the purchased product, and otherwise will repair the defect within seventy-two (72) hours, such repairs to be free of charge to Owner.  This warranty does not cover links that change over time, pages that become obsolete over time, content that becomes outdated over time, or other changes that do not result from any error on the part of Developer,

• d.               The media on which the Deliverables is or will be contained shall not knowingly contain any computer instructions which purpose is to disrupt, damage or interfere with the use of any other computer programs or computer telecommunications facilities for their commercial purposes, or perform functions which are not an appropriate part of the functionality of the applicable computer programs, and which result is to disrupt the use or operation of such computer programs or contain advertisements or promotions of a competing company of Developer.  The Deliverables shall not knowingly contain any virus, worm, trojan horse, spyware or other similar code, or any mechanism which electronically notifies the user of any fact or event, nor any key, node lock, time-out, logic bomb or other function, implemented by any means, which may restrict use of or access to any programs, data or equipment or collect users payment information or personal data.

1. 11.            Independent Contractor.  Developer, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall be construed as constituting an employment, joint venture, or partnership relationship between Developer and Owner.  Developer shall be solely responsible for and shall hold Owner harmless for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workmen’s compensation.

1. 12.            Injunctive Relief.  Owner and Developer agree that any default under or breach of Sections 2.d, 7, 8, 9, 10, , 11, and 12 of this Agreement will result in immediate and irreparable injury and harm to Owner or Developer, which shall have, in addition to any and all remedies of law and other consequences under this Agreement, the right to an injunction, specific performance or other equitable relief to prevent the default under or breach of this Agreement.  The forgoing remedies shall in no way limit any other remedies which Developer or Owner may have, including, without limitation, the right to seek monetary damages from the damaging party.

1. 13.            Termination.  Unless earlier terminated in accordance with this Section 17, this Agreement shall continue in effect for a period of twelve (12) months. After this period, this agreement will remain in effect until canceled by either party with a thirty (30) day notice to the other party.  Owner may, at its sole option, terminate this Agreement upon a thirty (30) day written notice to Developer after the initial 12 month agreement contained in this agreement.  Upon receipt of notice of such termination, Developer shall inform Owner of the extent to which performance has been completed through the date of termination and collect and deliver to Owner whatever work product and Deliverables then exist in a manner prescribed by Owner which is not owned by Owner.  Developer may not terminate this Agreement except upon the occurrence of a material default by Owner which has not been cured within thirty (30) days after written notice to Owner.  Sections 2.d, 3, 6, 7, 8, 9, 10, 13, 16, 17, and 18 of this Agreement shall survive any termination of this Agreement.

1. 14.            General.

1. a.                Costs of Litigation.  If any action is brought by either party to this Agreement against the other party regarding the subject matter of this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees, costs, and expenses of litigation.

• b.               Governing Law; Submission to Jurisdiction.  This Agreement shall be governed by and construed in accordance with the laws of the state of Florida, USA.  Developer acknowledges that by entering into this Agreement, and providing services under this Agreement, Developer is transacting business in the state of Florida and provides services in the United States of America, Canada and any other country in which Developer chooses.  

• c.                No Assignment.  Owner may not assign or delegate, sublicense or otherwise transfer this Agreement, or its services to be performed or obligations under this Agreement to any outside source without the expressed written permission from Developer. . 

• d.               Waiver.  No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.

• e.                Severability.   If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision, and such invalid term, clause or provision shall be deemed to be severed from the Agreement.

• f.                Integration.   This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement.  All schedules, products, payments referenced in this Agreement shall be incorporated into this Agreement by a product selection on Developer website or by email or verbal reference.  This Agreement shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement.  This Agreement shall take precedence over any other documents which may conflict with this Agreement.

This Digital Services Agreement is effective upon purchase of Developer’s products by the Business Owner. By selecting the Digital Services Agreement on the shopping cart, the Owner agrees that they have read this agreement and agrees to the terms and conditions as stated on this Digital Services Agreement.

Updated and Effective 12-21/