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TERMS AND CONDITIONS

These Terms and Conditions (“Agreement”), dated as of the date of acceptance (“Effective Date”), is between WhyteSpyder, Inc, an Arkansas Corporation (“Service Provider”) (DBA “SKU Ninja”) and the Client accepting said terms via online consent or by accepting and signing a Quote (“Client”).

Service Provider is in the business of technology, strategy, and content creation for retailers and suppliers. Service Provider’s technology, known as SKU Ninja, is a web-based software service that provides content assessment and competitive analysis of product detail pages on major eCommerce retailers. Strategy helps retailers and suppliers review data from SKU Ninja and other resources to determine action plans to improve digital merchandising performance by increasing traffic, conversion and sales to achieve a greater return on investment from online investments. Content creation services allow retailers and suppliers to invest in digital merchandising content creation at scale, directed by data and strategy. The exact terms of the services provided will be included in the Quote, Invoice, and/or Schedule of Work.

Section 1 –Engagement of Service Provider

  1. Client engages Service Provider, and Service Provider accepts said engagement, to allow Client to use SKU Ninja, under license, and the Parties agree to the below stated terms and conditions set forth in this Agreement.

  2. The Parties acknowledge and agree that Service Provider is an independent contractor. Service Provider has control over the means, manner, and method of performing the Services. Service Provider shall be solely and entirely responsibly for Service Provider’s actions or omissions while engaged in the performance of Services under this Agreement. Neither Party shall have the right to bind the other or to transact any business on behalf of the other Party, unless specifically authorized in writing or otherwise specified in this Agreement. Nothing in this Agreement shall be construed as creating an employer/employee relationship between the Parties.

Section 2 –Performance of Services

  1. Service Provider will provide all Services and Work Product in a timely, professional, and workmanlike manner, in accordance with the terms and conditions set forth in this Agreement.

  2. Service Provider is solely responsible for selecting the personnel who will provide the Services under this Agreement and the time allocation for Service Provider personnel.

  3. Service Provider may engage subcontractors to perform Services, including creating any work product or creative content. Service Provider’s use of subcontractors shall not relieve Service Provider of its representations, warranties, or obligations under this Agreement, and Service Provider shall ensure that all subcontractors perform the Services in accordance with the terms of this Agreement and shall take steps to ensure the confidentiality of any proprietary information of the Client. Subcontractors shall be held to the same terms regarding confidential information contained herein as the Service Provider.

  4. For each Service provided, Service Provider shall confirm delivery and availability for final review and approval. Client shall have five business days to review, audit, and/or test the Service (“Review Period”). If Client does not provide notification of non-conformities within the Review Period, the Service will be deemed accepted by Client. If Service Provider receives notification of non-conformities in the Service, Service Provider will use commercially reasonable effort to correct the non-conformity within five business days.

  5. The Service Provider will provide to the Client a Schedule of when the Services are to be performed, an Exhibit detailing the Services to be performed, and a Quote showing what the Services will cost.

  6. If during the course of performing the Services, the Client adds additional Services, then the Service Provider has the right to adjust the Quote as necessary to reflect the charges for the new Services.

  7. The Services will generally be performed in Washington County, Arkansas, but the Service Provider can provide Services from any reasonable location or any location that is necessary to perform said Services.

Section 3 – Client Obligations

  1. Client is responsible for erforming all of Client’s responsibilities under this Agreement, including timely payment of all Fees and Reimbursable Expenses.

  2. Client is responsible for providing Client Materials and other such information, items, and resources as reasonably requested by Service Provider from time to time.

  3. Client is responsible for providing Service Provider with access the Operating Environment as is necessary for Service Provider to perform its obligations under this Agreement.

  4. Client is responsible for participating with suitably qualified and authorized personnel in all meetings scheduled as may be mutually agreed. Client is responsible for making its personnel reasonably accessible outside or scheduled meetings to answer questions and collaborate with Service Provider personnel as is reasonably necessary for Service Provider to perform its obligations under this Agreement.

  5. Client is responsible for providing all consents, approvals, or other communication as may be required under this Agreement.

  6. Service Provider shall not be liable or responsible for any delay or failure to perform Service Provider’s responsibilities under this Agreement due to, or resulting from, any failure by Client to perform any of its obligations set forth in this Agreement.

  7. The Client agrees to take all commercially available steps to keep and maintain in the Client Systems safe, secure, protected, and in good working order during the Term. The term “Client Systems” means the Client’s information technology infrastructure, which shall include necessary Internet connectivity and certain computers, software, hardware, databases, electronic systems, and networks.

  8. Client shall at all times during the Term: 1) set up, maintain, and operate in good repair all Client Systems on or through which the Services are accessed or used; 2) provide Service Provider personnel with such access to Client’s premises and Client Systems as is necessary for the Service Provider to perform the Services in accordance with this Agreement; 3) provide all ooperation and assistance as the Service Provider may reasonably request to enable the Service Provider to carry out its rights and obligations under this Agreement.

  9. The Client has and will retain sole responsibility for: 1) all Client data, including information, data, and other content, in any form or medium, that is collected, downloaded or otherwise received from the Client’s customers by or through the Services, including its content and use; 2) all information, instructions, materials provided by Client in connection with the Services; 3) Client’s information technology infrastructure, including computers, software, databases, electronic systems, and networks; 4) the security and use of the Client’s usernames, passwords and other access credentials; 5) all access to and use of the Services directly or indirectly by the Client or through the Client’s Systems.

  10. Except as provided in this Agreement, the Client shall not or shall not permit any person to : 1) remove, delete, efface, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the documentation, warranties, disclaimers, or intellectual property rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to the Services; 2) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

Section 4 – Fees

  1. Client shall pay Service Provider’s costs and fees (“Fees”) to Service Provider as set forth in the applicable Quote, as stated on the Service Provider’s website, or this Agreement, applicable to a particular project. The amount and calculation of Service Provider’s Fees are subject to change and will depend on the type of billing arrangement applicable to the Services. The method of billing may change from time to time by agreement of the Parties.

  2. Fees shall include Reimbursable Expenses as stated in the Quote or as approved as said expenses become necessary. Reimbursable Expenses are out of pocket expenses such as travel, freight, modeling fees, location fees, and any other out of pocket expense paid by Service Provider on behalf of Client.

  3. The amount of Fees for a project are contained in the Quote.

  4. Fees for use of the SKU Ninja product are estimated for the first month of service and said fees are due and payable before the SKU Ninja service is to be set up and activated for the Client. After the first month, the fees will be adjusted based on actual usage during the first month (if there is an overage the Service Provider will send an Invoice, if there is a shortage of use, then the Service Provider will provide a credit on the next months usage). After the first month, the Client will be billed at the end of the month for the actual amount of services used. Prices are quoted on the website and subject to change. All payments should be made via check, money wire, EFT, credit card, or other acceptable payment methods and payments should be made in full within 10 business days of the Invoice.

Section 5 – Invoices and Payments

  1. Service Provider shall provide an invoice of Fees (including Reimbursement Expenses) to Client on a monthly basis. Client shall pay amounts due within fifteen days from the date of such invoice. Client will have five business days from the date of receipt to review the Fees and charges set forth in the invoice. If Client does not provide notification of an objection to any Fees or charges in the invoice within five business days, then the invoice and Fees are deemed to be accepted by the Client. Payments can be made by ACH, check, credit card, or cash

  2. Payments not made by the due date called for in this Agreement will incur a penalty of one percent per month. Service Provider may suspend all work anytime a payment is passed due.

  3. All Fees for any invoice do not include taxes. Client is responsible for any sales, use, or excise tax that may be due to any government entity.

Section 6 – Intellectual Property Rights

  1. All Intellectual Property Rights in and to the Work Product shall be owned by the Client, with the exception that Intellectual Property Rights in SKU Ninja software do not transfer. Client has a license to use SKU Ninja software for the duration of this Agreement.

  2. Client is and will remain the sole and exclusive owner of all right, title, and interest in and to the Client Materials, including all Intellectual Property Rights.

Section 7 – Term and Termination

  1. The initial term of this agreement is contained in the Schedule of Services provided to the Client.

  2. Service Provider does not offer pro-rated refunds for early termination.

  3. Upon termination any of Client Materials in the possession of the Service Provider will be returned to Client.

  4. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party materially breaches this Agreement and such breach is incapable of being cured or remains uncured for fourteen calendar days after the breaching Party receives written notice of the breach.

  5. Either Party may terminate this Agreement by written notice to the other Party if the other Party is insolvent, is the subject of a bankruptcy proceeding, is dissolved or liquidated, makes a general assignment for the benefit of creditors, or enters into a receivership.

  6. If Client terminates this Agreement without cause, Client will remain obligated to pay Fees for all Services performed by Service Provider and Work Product received before the effective date of such termination or expiration of this Agreement. Upon termination of this Agreement, the license granted in Section 6, Paragraph 2, is terminated. Upon termination, Service Provider shall return all Client Materials.

  7. The rights and obligations of the Parties set forth in this Section, Section 5, Section 6, Section 8, Section 9, Section 10, Section 11, and any right or obligation of the Parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.

  8. The Term will be contained in the Schedule. This Term may be adjusted by Service Provider with written notice to the Client and if such adjustment is reasonable.

Section 8 – Representations and Warranties

  1. Each Party represents and warrants to the other Party that:

    1. It is duly organized, validly existing, and in good standing as a legal entity under the laws of its jurisdiction of incorporation or organization;

    2. It has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;

    3. The execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary actions of the Party;

    4. When executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligations of such Party, enforceable against such Party in accordance with its terms.

  2. Service Provider represents and warrants to Client that it will perform all Services in a professional and workmanlike manner in accordance with commercially reasonable industry standards and practices for similar services, using personnel with the requisite skill, experience, and qualifications, and shall devote adequate resources to meet its obligations under this Agreement.

  3. Client represents and warrants to Service Provider that it will not use the Services in any way that might infringe on the Intellectual Property Rights of any third party.

  4. EXCEPT FOR THE EXPRESS WARRANTIES SPECIFICALLY SET FORTH IN THIS AGREEMENT, EACH PARTY AGREES THAT THE SERVICES ARE PROVIDED AS-IS, AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES AND WORK PRODUCT, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR OTHERWISE.

  5. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE FOR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES. CLIENT’S REMEMDIES ARE LIMITED TO THE AMOUNT OF MONEY PAID TO SERVICE PROVIDER.

Section 9 – Indemnification

  1. Service Provider shall defend, indemnify, and hold harmless Client from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, penalties, fines, costs, and expenses (including attorney’s fees) that are incurred by Client arising out of or resulting from any Third Party claim, suite, action, or proceedings that arises out of or results from Service Provider’s material breach of this Agreement or the gross negligence or willful misconduct of the Service Provider.

  2. Client shall defend, indemnify, and hold harmless Service Provider from and against any and all losses, including attorney’s fees, arising out of or resulting from any claim, suit, action, or proceeding that arises out of or results from Client’s material breach of this Agreement or the gross negligence or willful misconduct of the Client.

Section 10 – Confidentiality

  1. Service Provider and Client acknowledge that during the course of performance under this Agreement, either Party may acquire non-public information regarding the other relating to business activities, strategies, and operations or those of its customers and suppliers, and its trade secrets including without limitation the software, Client Materials, Services, or a Party’s customer lists, prospective customers, rates, network configuration, usernames, passwords, and other access credentials, financial information, computer software, services, processes, methods, knowledge, research, development or any other information, that is confidential or proprietary to the business of such Party (hereinafter “Confidential Information”). Each Party shall hold Confidential Information in strict confidence and shall not reveal the Confidential Information to any third party, without prior written consent of the other Party. Neither Party shall use the Confidential Information except as necessary to achieve the purposes of this Agreement. Each Party will take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature.

Section 11 – Miscellaneous

  1. For the duration of this Agreement and for 2 years after its termination, neither Party shall solicit, hire, or retain for employment any of the other Party’s personnel. In the event that a breach of this Paragraph occurs, the Parties agree that injunctive relief is appropriate. The Parties agree that due to the nature of the damages sustain, a monetary amount is difficult to determine so the Parties agree to liquidated damages of 150% of the personnel’s compensation paid during the preceding 12-month period.

  2. Neither Party shall be liable to the other Party for a breach of this agreement due to acts of God, such as flood, fire, war, terrorism, riot, any passage of law or regulation, or shortage of electricity, telecommunications, or transportation facilities. Either Party may terminate this Agreement if once of the above events continues for a period of 30 days or more.

  3. All written notices required under this contract shall be deemed received when it is actually received, on the third day after mailing, or on the date sent by email (or the next business day).

  4. This Agreement, together with all Schedules, Exhibits, and Quotes constitutes the entire agreement of the parties and supersedes all prior statements or agreements.

  5. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the other Party’s written consent, which the Party shall not unreasonably withhold. This Agreement is binding upon the Parties’ permitted successors and assigns.

  6. There are no intended Third-Party Beneficiaries to this Agreement.

  7. This Agreement may be amended in writing, signed by both Parties. No failure to exercise any right in this Agreement shall be construed as a waiver of that right.

  8. If any term or provision of this Agreement is deemed invalid, that shall not affect the validity of the remaining terms and provisions.

  9. The laws of the State of Arkansas shall govern any and all disputes arising from or out of this Agreement. The Circuit Court of Washington County, Arkansas shall have exclusive Venue to hearing any said disputes.

  10. Service Provider shall be entitled to reasonable attorney’s fees for the prosecution of any breach of this Agreement.

  11. A copy of this Agreement is as valid as the original. This Agreement may be accepted by the Client by signature, by signing and accepting a quote, or by electronic acceptance when a purchase is made online.

Section 12 – Definitions

  1. Client Materials – all materials and information owned by the Client and provided to Service Provider in connection with this Agreement.

  2. Intellectual Property Rights – means all legally recognized intellectual property rights.

  3. Operating Environment – the Client platform and environment on which software is intended to be installed and operate, as set forth in Quote.

  4. Services – any of the services the Service Provider is required to do under this Agreement or a Quote.

  5. Work Product - all materials that Service Provider is required to produce in accordance with this Agreement.


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