THE FOLLOWING AGREEMENT APPLIES TO B2B MOBILE CMS CLIENTS
This Mobile CMS Agreement (hereinafter referred to as "Agreement") is between THE LITTLE CLOUD COMPANY (here in after referred to as "Company") and you, (hereinafter referred to as "Client"). BY ACCEPTING THIS AGREEMENT, EITHER BY COMPLETING THE ONLINE APPLICATION PROCESS OR BY CLICKING A BOX INDICATING CLIENT'S ACCEPTANCE OF THIS AGREEMENT, CLIENT AGREES TO BE BOUND BY THE FOLLOWING AGREEMENT.
If White Label is entering into this agreement on behalf of a company or other legal entity, White Label represents that White Label has the authority to bind such entity to these terms and conditions. If White Label does not have such authority, or if White Label does not agree with the terms of this Agreement, White Label must not accept this Agreement.
WHEREAS, White Label desires to license a White Label Mobile CMS (hereafter referred to as "Service" or "Services") from Company; and
WHEREAS, White Label intends to engage third parties (hereinafter referred to as "White Label Customers"). Company, White Label and White Label Customers are hereafter collectively referred to as "Parties" or "Party".
WHEREAS, White Label desires to resell licenses of Company's Services to White Label Customers. These White Label Customers may also in turn resell and market the Service access to other small and medium businesses (hereinafter referred to as "SMB" or "SMBs");
NOW, THEREFORE, in consideration of the mutual premises and covenants herein, the parties agree as follows:
Services will be provided to White Label by Company under the terms of this Agreement and will enable White Label to:
From time to time, Company may issue an update to the Service which may add, modify, and/or remove features from the Service. These updates may be pushed out automatically with little or no notice, although Company will attempt to notify White Label in advance of an upcoming update, including details on what the update includes, whenever possible.
White Label, White Label Customers and SMBs hereby agree to the following Service Terms, and must:
Violation of any of these Service Terms may result in the termination of individual user sites and/or White Label Customers and/or SMBs operating under White Label's Services. White Label understands and agrees that Company cannot be responsible for the Content posted on the Service and White Label nonetheless may be exposed to such Content. White Label agrees to use the Service at White Label's own risk, and to hold Company harmless for any loss, misconduct, or unauthorized use of the Service.
If any unauthorized use occurs, Company may hold White Label or any party that White Label have assigned liable for any loss or damage that are a result of the breach of this Agreement.
White Label's use of the Service is at White Label's sole risk. The Service is provided on an "as is" and "as available" basis.
White Label understands that Company uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
White Label must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, or any other company service.
White Label agrees not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written consent by Company.
Company may, but has no obligation to, remove Content and Services containing Content that Company determines in its sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any Party's intellectual property, or this Agreement.
Verbal, physical, written or other abuse (including threats of abuse or retribution) of any Company customer, employee, member, or officer will result in immediate Service termination.
White Label understands that the technical processing and transmission of the Service, including White Label's Content, may be transferred unencrypted and involve: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
White Label must not upload, post, host, or transmit unsolicited email, SMSs, or "spam" messages.
White Label must not transmit any worms or viruses or any code of a destructive nature.
White Label shall make no commitment for or on behalf of Company or for which Company shall have any liability or responsibility unless Company shall have first given its approval and commitment.
Company's compensation for services rendered to White Label pursuant to this agreement shall be determined in accordance with the fees and pay schedule set out in Exhibit 1 hereto:
White Label hereby authorizes Company to draw monthly automatic recurring payments from Visa or MasterCard, covering the initial setup fee, all monthly dues and all other applicable payments to White Label's Service as stated in a monthly invoice that shall be e-mailed by Company. White Label shall pay this invoice via an automated electronic transaction.
The Service fee will renew automatically on a month-to-month basis, and monthly recurring payments, where applicable, will continue until notice of cancellation is received.
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and White Label shall be responsible for payment of all such taxes, levies, or duties.
Company reserves the right to revoke access to Services if White Label's balance is overdue or invoices are not paid in full. At a minimum, Company will give 7 days notice to White Label before terminating this Agreement.
If for whatever reason, White Label defaults on payment or its invoices are not paid in full, White Label hereby authorizes Company or its assignee to collect the outstanding monies, plus service charges and interest, in any method available to Company. White Label shall indemnify Company for all collection or legal fees incurred by Company in order to satisfy White Label's payment defaults.
There will be no refunds or credits for setup fees, partial months of Service, upgrade/downgrade refunds, or refunds for months unused with any Service.
White Label shall be responsible for expenses resulting in the business operations and/or incurred by White Label, White Label Customers and SMBs.
Either Party will have the right to terminate this Agreement immediately upon providing written notice upon the occurrence of any of the following events by the other Party:
All product ideas, concepts, themes, and other intellectual property rights or advertising materials supplied to White Label shall be and will remain the property of Company.
Company claims no intellectual property rights over the material White Label provides to the Service. White Label's profile and materials uploaded remain property of White Label. However, by using the Company Service to create White Label's mobile websites, White Label agrees to allow others to view and share White Label's Content.
Company does not pre-screen Content, but Company and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service.
White Label shall be solely responsible for securing and paying for all digital Content licenses and any other Trademark or Copyright licenses from Content owners (or their agents) required in connection for White Label, White Label Customers and SMBs to use in connection with the Company Service.
White Label shall own and retain all rights to the Content provided by White Label. Company shall own all rights, title, and interest in and to all other elements, materials, data, graphics, and code of the Service including all interfaces, navigational devices, menus, menu structures or arrangements, icons, help and other operational instructions, and all other components of any source or object computer code that comprise the Service, all literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the Service and design elements. White Label shall not do anything that may infringe upon or in any way undermine Company's right, title, and interest in the Service or any other intellectual property held by Company. Company reserves the right to display any portion of White Label's publicly available Service for the purpose of displaying rendered work to other potential customers or for marketing purposes.
Each Party acknowledges that in connection with this Agreement it may have access to proprietary information of the other Party, including but not limited to trade secrets, data, processes, technical information, business knowledge, pricing, service providers, hosting providers, technology partners, research and development and marketing strategies (hereinafter collectively referred to as "Confidential Information"). White Label acknowledges that the disclosure of Confidential Information in any manner would be highly detrimental to the interest of Company. White Label agrees that the right to maintain such Confidential Information constitutes a proprietary right, which Company is entitled to protect. Accordingly, White Label, White Label's agents and White Label's employees agree that they cannot disclose or permit the disclosure (either during this Agreement or thereafter) any Confidential Information to any person, or use or permit the use of same, for any purposes other than those of the owner of such information. White Label shall not use any Confidential Information of Company except as may be necessary to perform White Label's obligations under this Agreement. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of White Label.
White Label shall not be deemed an employee of Company for any purpose whatsoever. White Label shall remain at all times an independent contractor.
The Parties shall not prior to, during or after the term of this Agreement, reveal or otherwise make available to any other person any Confidential Information regarding the other party's products, services, business, customers, or methods of operation learned by the other party while providing, or receiving Services hereunder. Any specifications, drawings, sketches, models, samples, tools, computer programs, technical or business information, or data, in written, oral, or graphic form or otherwise, furnished to either Party hereunder or in contemplation hereof shall remain the property of Company, or White Label, as the case may be.
White Label is responsible for maintaining the confidentiality of White Label's Service password, and is responsible for all activities that occur under White Label's, White Label's Customer's and SMB's Service. White Label agrees to immediately notify Company of any unauthorized use of White Label's password or Service or any other breach of security, which includes but is not limited to computer viruses, trojan horses, spyware, malware, adware, hacking, and other malicious or unwanted means expressly or impliedly prohibited by, or inconsistent with, any provision of this Agreement.
Company reserves the right to revoke access to the Service, at its sole option and discretion and without notice to White Label, if any misuse or foul play occurs or is suspected within the system.
Company will not be liable for any loss or damage arising from White Label's failure to provide Company with accurate information or to keep White Label's password secure.
Company will host White Label's Service with a premium Internet hosting provider. White Label will be granted access to White Label's Service from their own Internet domain and any sub-domains associated with the particular Service (example: admin.whitelabeldomain.com). Company will make reasonable efforts to monitor the uptime of the hosting account, but does not guarantee or warrant its reliability due to various external Internet factors.
Under the terms of this Agreement, White Label will receive access to a secure online members section hereinafter referred to as to as "Members Area") that can be found at http://www.THE LITTLE CLOUD COMPANY.com/members/.
Information shared in the Members Area is copyright of Company and must be kept confidential at all times. White Label may not share or sell any information to business owners, package or offer this information as a bonus, add this information to membership sites, or otherwise distribute this information without written consent from Company. The trademarks, logos, and service marks that are displayed in Members Area information are the registered and unregistered marks of their respective owners. Company reserves the right to revoke access to the Members Area at any time if any misuse or foul play occurs, or if unauthorized file sharing or multiple-IP logins are detected in the system.
Technical support is available via email, telephone, or via the Company's support forum found at http://support.THE LITTLE CLOUD COMPANY.com. The technical support email address is support@THE LITTLE CLOUD COMPANY.com.
Company will make the best efforts to respond to all reasonable requests in a timely manner. White Label understands that Company will not be held liable for any loss or misfortune that may occur from support or technical recommendations, or the time at which it may take for the support or technical issue to be addressed.
In no case will Company be responsible to directly support White Label Clients or SMBs.
Company does not warrant that: (i) the Service will meet White Label's specific requirements; (ii) the Service will be uninterrupted, timely, secure, or error-free; (iii) the results that may be obtained from the use of the Service will be accurate or reliable; (iv) the quality of any products, Service, information, or other material purchased or obtained by White Label through the Service will meet White Label's expectations; and (v) any errors in the Service will be corrected.
White Label expressly understands and agrees that Company shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Company has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (iii) unauthorized access to or alteration of White Label's transmissions or data; (iv) statements or conduct of any third party (including White Label Customers or SMBs) on the Service; or (v) or any other matter relating to the Service.
Company makes no warranty, and White Label hereby waives and disclaims any other warranty, representation, or condition of any kind or nature, express or implied, verbal or written, statutory or otherwise, including, without limitation, any warranty representation or condition of merchantability or fitness for purpose.
White Label acknowledges that Company will make reasonable efforts, but does not warrant that the Service will work on all mobile platforms. White Label acknowledges that Company is not responsible for the results obtained by White Label's Customers. In every circumstance, Company will have no liability for any damage, loss of productivity, or loss or alteration of matter detrimental to White Label Customer's property due to the use of third-party software or hardware installed or recommended by Company.
White Label represents and warrants that any Content provided to Company so that Company may carry out the terms of this Agreement does not violate the rights of any third party, whether arising by agreement or by operation of law. White Label hereby: (i) grants to Company a license to use any such works or intellectual property attaching to such works; and (ii) waives any and all moral rights in association with any such works provided to Company. White Label further represents and warrants that such license and waiver of moral rights does not violate any rights of any third party.
White Label agrees to indemnify, save and hold harmless Company, their affiliates, agents, and employees from and against any and all claims, losses, actions, damages, expenses, and all other liabilities, including but not limited to reasonable attorney's fees, arising out of services performed by White Label for Company or services performed by Company for White Label as the case may be.
White Label waives any claim for damages of any kind or nature against Company and agree that White Label's sole and exclusive remedy for damages (either in contract or tort) is the return of the price paid to Company limited to a total value of $3,000.
Company will retain the right to use White Label's name for promotional purposes unless expressly notified otherwise in writing by White Label.
This Agreement does not constitute an agreement for a partnership or joint venture between the parties. All expenses and costs incurred by White Label in meeting its obligations under this Agreement shall be solely those of White Label, and Company shall not be liable for their payment. White Label can make no commitments with third parties that are binding upon Company without Company's written consent.
White Label will not have an exclusive right to market, sell or resell Company's Solutions, and no franchise is granted to White Label. Company expressly reserves the right to market, sell and resell Solutions itself and to contract with others to market, sell and resell Company's Solutions.
This Agreement is personal to White Label, and White Label cannot assign or delegate White Label's rights or duties to any third party, whether by contract, will, or operation of law, without Company's prior written consent. Any attempt to do so shall be void. This Agreement shall inure to the benefit of the successors and assigns of the parties.
All notices that may be given by either Party to the other shall be deemed to have been duly given when made in writing and delivered in person, by regular mail, postage prepaid or electronic mail and addressed as follows:
THE LITTLE CLOUD COMPANY Inc.
P.O. Box N-3558
nadia@THE LITTLE CLOUD COMPANY.com
Failure to enforce any provision hereof shall not constitute a waiver of that or any other provision in any other circumstances.
This Agreement constitutes the entire Agreement between White Label and Company with respect to the subject matter hereof and cancel and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written (including, but not limited to, any prior versions of this Agreement) between White Label and Company with respect thereto.
Company may assign all of its rights, interests and obligations pursuant to this Agreement to any person or Company without White Label's consent. White Label shall not assign or transfer any of White Label's right or obligations pursuant to this Agreement without the prior express written consent of Company.
If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof shall continue in full force and effect.
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers as of the day and year first above written.
EXHIBIT 1 WILL BE PROVIDED SPECIFIC TO EACH WHITE LABEL
Updated: July 7, 2014