Terms and Conditions
This contract (the “Contract”) sets forth the terms and conditions pursuant to which Skoshe shall provide certain mobile application platform and Internet products (the “Services”) to Customer and sets forth the rights and obligations of the parties hereto. “Customer” shall mean individual, sole proprietorship, partnership, association, joint stock company, corporation or any other entity authorizing the Services. “Services” shall mean any and all advertising products, services and applications provided by Skoshe to Customer.
1. ACCEPTANCE. The parties acknowledge and agree that (i) this Contract will be binding upon and enforceable against Customer upon Customer’s execution of this Contract (the “Date of Sale”) and (ii) this Contract will be binding upon and enforceable against Skoshe upon the earlier of Skoshe’s performance of its obligations hereunder or Skoshe’s express written acceptance of this Contract. Skoshe shall have no obligations under this Contract whatsoever until such performance or express written acceptance.
2.TERM,TERMINATION AND CANCELLATION. Customer acknowledges and agrees that: The initial term of this Contract shall commence on the Date of Sale and continue for a period ending one year following the publication of Website, App and Online Presence Management Services. The initial term of this Contract shall commence on the Date of Sale and continue for a period ending six months following the publication of Search Engine Marketing (SEM) Services. At the end of such term, this Contract shall automatically renew for successive one-year periods for Website and App Service as then published standard rates. At the end of such term, this Contract shall automatically renew for successive six-month periods for Search Engine marketing Services as then published standard rates. At the end of such term, this Contract shall not automatically renew for Online Presence Management Services. Customer acknowledges that Skoshe reserves the right to move the publishing date of Services in its sole and absolute discretion as deemed necessary; provided that in such event, Customer’s obligation to make monthly payments (but not the amount of such payments) shall be adjusted (i.e. extended or reduced, as appropriate) in like manner. In addition, Customer shall remain liable for the payment of all Services. Customer must submit account Cancellation requests in writing by certified mail. If a cancellation request is submitted before the end of Customer’s then current Term, Cancellation will take effect at the end of the current term and will require five (5) business days for processing. If a cancellation request is not submitted before the end of Customer’s then current Term, Cancellation will not take affect and Contract will automatically renew for an additional Term. Customer agrees that Skoshe shall have the right to unilaterally cancel this Contract without any notice to Customer at a time.
4. OWNERSHIP AND LICENSING. In regards to the Services, Customer acknowledges and agrees; (i) that any and all rights, title, authority, ownership and interest including but not limited to; the development, design, template, software, code, images and content for use relating to the Services is owned, operated, registered and/or licensed by Skoshe or a third-party vendor of Skoshe; (ii) that Skoshe is granting Customer the right to use the Services during the term of the contract; (iii) that Customer is prohibited from copying, reproducing, reverse engineering, decompiling, translating, disassembling, rearranging, dissecting, modifying, altering, creating derivative works from, sub-licensing, transferring, assigning and distributing any of the information relating to the Services and (iv) Skoshe retains all rights in and/or ownership of any Services created or supplied by Skoshe; (v) upon termination of the Services, all of the above described information will belong to and remain with Skoshe; (vi) if Customer requests the transfer of any/all of the above described information, Customer will be required to pay a transfer fee to Skoshe. None of the above described information will be released to Customer until the fee is obtained.
5. PAYMENT TERMS. Customer acknowledges and agrees that payment for Services will be made to Skoshe on a monthly basis or paid in full via credit card or ACH transfer. Skoshe reserves the right to modify and change payment processing services at any time without notice. There will be no refunds or credits for setup fees, partial months of service, upgrade/downgrade refunds or refunds for months unused. Skoshe reserves the right to charge additional fees for optional premium serves including but not limited to extra storage, excessive downloading, excessive image changes (exceeding 25 monthly), excessive product changes (exceeding 5 monthly), use of videos, domain purchases and ad removal, Customer acknowledges and agrees that any payment that he makes pursuant to this Contract, before being applied toward the amounts due under this Contract, shall first be applied towards any previous charges that may be due and owing to Skoshe under the terms of any other contract between Customer and Skoshe. If Customer fails to pay any amount due under terms of this Contract or any other contract between Customer and Skoshe when due, Skoshe may, at its sole election, accelerate the entire amount of Customer’s outstanding obligations under any or all such Contracts, without further notice to Customer, in which event any and all amounts payable by Customer shall become immediately due and payable together with reasonable attorney’s fees, court costs, and other reasonable expenses incurred if it becomes necessary to exert these means to effect collection. Customer hereby knowingly and willfully waives demand, presentment, dishonor notice of default, notice of intent to accelerate, notice of acceleration and any other notice which might otherwise be required under applicable law upon Customer’s failure to pay any amount when due, except where such waivers are otherwise prohibited by applicable laws. A LATE CHARGE equal to one and a half percent (1.5%) per month will accrue on any amounts payable by Customer which are not paid within 30 days of the date upon which such payments become due and payable. Skoshe may charge a reasonable processing fee for returned checks. If collection action is necessary, customer agrees to pay for all costs of collection, including, without limitation, legal fees and court costs. No acceptance of any payment or instrument marked with any restrictive covenants or other limited or conditional endorsement shall be deemed a waiver of any Skoshe’s rights under this Contract.
6.TAXES. Customer will be responsible for any sales, use excise or gross receipt taxes which are currently or may in the future be imposed on the sale of the advertisement.
7. CAUSES OF ACTION. The parties agree that, unless otherwise prohibited by law, any claims or causes of action arising under or relating to this Contract by a party hereto shall be commenced prior to the date that is two (2) years after the date upon which the Digital Services is first published by the Digital Service provider and that all causes of action not commenced by a party hereto within such two year period will be deemed waived; this shall not include claims or causes of action arising from Customer’s failure to pay.
8. LIMITATION OF LIABILITY. Customer hereby acknowledges and agrees that Skoshe’s total liability under this Contract is limited to total amount paid by Customer. In no event will Skoshe be liable for consequential or special damages, lost profits or direct or indirect damages suffered or incurred by Customer or a third party as the result of any breach of any obligations under the Contact.
9. COMPLETE AGREEMENT; MODIFICATION. This Contract contains the entire agreement of the parties with respect to the advertising services to be provided by Skoshe. No agent or employee of Skoshe or Customer has the authority to vary any of the terms of this agreement. This Agreement represents the final contract and agreement between the parties and may not be contradicted by evidence prior, contemporaneous or subsequent oral agreements of the parties. There are no-unwritten agreements between the parties.
10. AUTHORITY. The person signing on behalf of Customer on the opposite side of this Contract, or otherwise authorizing the placement of the advertising hereby certifies that he or she is either Customer, or that he or she has been lawfully authorized to enter into this Contract on behalf of Customer and when executed this Contract will constitute the legal, valid and binding obligation of Customer enforceable against it in accordance with its terms. If Agency is executing on behalf of Customer, Agency hereby represents and warrants that both Agency and Customer are contractually bound by the terms of this Contract and are subject to all terms and conditions.
11. GOVERNING LAW. This Agreement and the transaction(s) hereunder shall be governed as to validity, interpretation, enforcement and effect by the laws of the State of Utah and shall be binding on and inure to the benefit of Skoshe and Customer, and upon their respective heirs, personal representatives, successors and assigns. In addition, this Agreement shall be deemed to have been made, accepted, performable and all amounts payable to Skoshe, 380 E. Main Street Bldg. B Ste. 110, Midway, Utah, 84049. Each party to this Agreement hereby irrevocably submits to the jurisdiction of the courts located in Utah and agrees that the exclusive venue of any legal action arising out of this Agreement shall be in Wasatch County, Utah.
12. FORCE MAJEURE. Customer and Skoshe acknowledge and agree that none of the other parties hereto will be in breach of their respective obligations under this Contract in event that, for cause or causes beyond their control, such parties are unable to perform, in whole or in part, any one or more of their obligations under this Contract. Such causes shall include, but not to be limited to, labor disputes, governmental regulations or controls, fire or other casualty, inability to obtain materials or services, technical failure, acts of God, insurrection, or any other cause not within the reasonable control of the party which is unable to perform.
13. BINDING EFFECT AND ASSIGNMENT. Skoshe may assign its rights and obligations under this Contract without notice to or consent from Customer. Customer may not assign (whether voluntary, involuntary, by merger, consolidation, dissolution, operation of law or any other manner), its rights and obligations under this Contract without the prior written consent of Skoshe (which consent shall not be unreasonably withheld) and unless such assignee agrees in writing to be bound by and subject to the terms of this Contract, including without limitation, the payment terms. Any assignment approved by written consent shall not relieve Customer of any of its obligations under this Contract unless such exculpation is specifically set forth in such written consent.
14. SEVERABILITY. The invalidity or enforceability of any particular provision, or part of any provision of this Contract will not affect the other provisions or parts hereof, and this Contract will be construed in all respects as if such invalid or enforceable provisions(s) or parts(s) were omitted.
15. ATTORNEY’S FEES. In the event of litigation arising out of this Contract or its enforcement by either party, the prevailing party shall be entitled to recover as part of any judgment, reasonable attorney’s fees and court costs.
16. CORRESPONDENCE. All correspondence should be directed to: