TERMS OF SERVICE

Last Updated December 26, 2018

 

PURPOSE

This sets forth the Terms of Service that will govern all work performed by AbleSpark for the Client. AbleSpark is a trade name wholly-owned by KABAM, Inc.

ASSIGNMENTS TO ABLESPARK

Projects and tasks to be completed by AbleSpark will be defined by one or more Work Orders or Service Agreements and shall hereinafter be referred to as “Assignment(s)”. All Assignments currently agreed upon between AbleSpark and the Client, as well as any Assignments agreed upon between AbleSpark and the Client in the future, shall automatically become a part of this agreement and will be subject to its terms.

PAYMENTS

Payments will be made as specified in each Assignment. The grant of any license or right of copyright for the deliverables for any Assignment is conditioned on the receipt of full payment for all services rendered.

LATE PAYMENT PENALTY

Payments that are not received by their due date will be subject to a 15% late payment penalty.

SUSPENSION FOR NON-PAYMENT

AbleSpark reserves the right to suspend or cancel any services provided to the Client if any payment milestone defined in any Assignment is missed, any invoice is not paid by its due date, if any credit card payment made by the client is disputed, and/or if any payment made by the Client is returned for insufficient funds or a stop-payment.

FAILURE TO PAY

If the Client fails to make payment as agreed, AbleSpark reserves the right to pursue any appropriate collection action allowed by law without notice to the Client. In the event that AbleSpark pursues any collection action(s), the Client shall be responsible for all costs, expenses and legal fees incurred therein. Failure to pay includes, but is not limited, to presentment of checks which are dishonored for any reason, declined credit cards, or partial payments unless otherwise permitted in writing.

EXPENSES

Unless explicitly covered in an Assignment, the Client shall reimburse AbleSpark for all costs and expenses incurred in the course of performing the agreed work, including, but not limited to the payment of any sales taxes due.

ESTIMATES ONLY

The Client acknowledges that all prices, costs, and expenses quoted in any Assignment are estimates only. AbleSpark shall have the right to exceed these estimates by 10% without permission from the Client.

RESTART FEE

Assignments that are dormant for 45 days will incur a $500 restart fee which is payable before work will resume.

TECHNOLOGY USED

AbleSpark will use the design and development techniques that it deems appropriate for each Assignment. AbleSpark reserves the right to charge additional fees to employ specific design and development techniques or software requested by the client.

CONTENT PROVIDED BY CLIENT

All content provided by the client should be complete and in an appropriate digital format. Examples of appropriate digital formats include:

  • Microsoft Word, OpenOffice.org Writer, ASCII text files, and PDF for text;
  • MP3 and WAV files for audio;
  • JPEG, GIF, Adobe Illustrator, EPS, and PDF for images.

Additional fees will apply to edit previously received content and to convert content into an appropriate format if necessary.

TESTING ON OLDER BROWSERS AND DEVICES

All web-based work is tested using recent versions of FireFox and Chrome. Testing and modifications for other browsers or devices, including older versions of FireFox and Chrome, are subject to additional fees.

CUSTOM FUNCTIONALITY

Unless otherwise stated, prices quoted in Assignments for the installation and configuration of website
plug-ins, programs, or software only includes modifications to the look and feel of the plug-in, program, or software as provided within the software’s existing functionality. Additions or modifications to the existing capabilities of any plug-in, program, or software are subject to additional fees.

WEBSITE AND APPLICATION HOSTING

If website and/or application hosting is provided by AbleSpark, the Client expressly agrees to accept electronic delivery of all invoices including, but not limited to, e-mail notification and the posting of the Client’s invoices in AbleSpark’s online billing system. Failure to pay any invoice prior to its due date, may result in the automatic cancellation of the Client’s hosting account without warning or backup. Furthermore, and for all purposes contained in this Agreement, the client expressly agrees to be bound by AbleSpark’s Acceptable Use of Services policy which may be found online at https://www.ablespark.com/auos/, which is hereby made part of this Agreement.

DOMAIN NAME REGISTRATON

If domain registration services are provided by AbleSpark, the Client expressly agrees to accept electronic delivery of all invoices including, but not limited to, e-mail notification and the posting of the Client’s invoices in AbleSpark’s online billing system. Failure to pay any invoice by its due date will result in the automatic forfeiture of any rights to any domain registered by AbleSpark on the Client’s behalf. Domains whose payments are overdue will be will automatically transferred to and ownership vested in AbleSpark.

EMAIL SERVICES

If email services are provided by AbleSpark, the Client expressly agrees to accept electronic delivery of all invoices including, but not limited to, e-mail notification and the posting of the Client’s invoices in AbleSpark’s online billing system. Failure to pay any invoice prior to its due date may result in the automatic cancellation of the Client’s email account(s) without warning or backup.

MUTUAL CONFIDENTIALITY

AbleSpark recognizes and acknowledges that each Client agreement creates a confidential relationship between AbleSpark and Client and that information concerning Client’s business affairs, customers, vendors, finances, properties, methods of operation, computer programs, and documentation, and other such information, whether written, oral, or otherwise, is confidential in nature. Furthermore, the Client recognizes and acknowledges that information concerning AbleSpark’s Client’s business affairs, customers, vendors, finances, properties, methods of operation, computer programs, and documentation, and other such information, whether written, oral, or otherwise, is confidential in nature. All such information concerning Client and AbleSpark is hereinafter collectively referred to as “Confidential Information”. Information shall not be considered confidential if it is already publicly known through no act of either AbleSpark or the Client.

MUTUAL NON-DISCLOSURE

AbleSpark agrees that, except as directed by the Client, it will not at any time during or after the term of the Agreement disclose any Confidential Information to any person whatsoever, except as required by law. Upon the termination of this Agreement, AbleSpark will turn over to the Client all documents, papers, and other materials in its possession or control that were provided by the Client during the execution of the Client’s agreement. Furthermore, the Client agrees that, except as directed by AbleSpark, it will not at any time during or after the term of this agreement disclose any Confidential Information to any person whatsoever. However, to the extent that AbleSpark pursues collection or any other legal action against the Client, or is
required to defend against legal action brought against it, AbleSpark shall not be prohibited from releasing Confidential Information to the extent that same may be necessary to advance its position before a court or other tribunal.

RIGHTS TO DEVELOPMENT

All inventions, creations, computer programs and code, software, documentation, specifications, training materials, modifications to software or documentation and all other computer code and/or programs, writings, designs, and specifications developed by AbleSpark under this agreement, as well as all papers, records, sound recordings, pictorial reproductions, drawings or other graphical representations, and any other work product and the like prepared, produced or delivered by AbleSpark in the performance of services under this agreement, shall hereinafter be referred to as “Works.” AbleSpark shall own all worldwide right, title, and interest, including copyright, trademark, patent and other intellectual property rights (collectively called the “Intellectual Property Rights”) in the Works and in all other material discovered, developed, learned, created, produced, or provided by AbleSpark (or its employees or subcontractors) under this agreement. AbleSpark shall provide the Client a worldwide, royalty-free, non-exclusive, transferable and perpetual right and license to use the Works upon final payment for the deliverables.

NO SOLICITATION BY THE CLIENT

During the term of this Agreement, and for a period of one (1) year after the termination of this Agreement, the Client agrees that it will not, on its behalf, or on behalf of any other person or entity, directly or indirectly, solicit, attempt to solicit, hire, attempt to hire, employ, attempt to employ, associate or attempt to associate in business with any person employed by AbleSpark or any person who has left the employ of AbleSpark within the preceding three (3) months, or discuss any potential employment or business association with such persons, regardless of who initiates the discussion or how the persons come to the Client’s attention, without written agreement by AbleSpark. Additionally, the Client shall not attempt to or actually recruit, solicit or induce any employees of AbleSpark to terminate their employment with, or otherwise cease their relationship with AbleSpark. In the event that the Client unknowingly does approach or is approached by an employee of AbleSpark, the Client agrees to cease and desist all negotiations and/or contact with them upon notification of the violation by AbleSpark. Use of general employment advertising and independent employment agencies, if not directed at one or more of AbleSpark’s employees, shall not constitute solicitation for the purposes herein.

SOFTWARE LICENSES AND UNAUTHORIZED USE.

Client acknowledges and agrees that all software used to fulfill the deliverables remains subject to the terms of its respective license. All software created by AbleSpark is licensed for non-exclusive use as part of the deliverables and may not be modified, duplicated, sold, transferred, assigned, or used in any other manner without the express written permission of AbleSpark. Furthermore, the Client will indemnify and hold harmless AbleSpark against all claims and expenses arising from uses of which the Client does not have rights to or authority to use. The Client will be responsible for payment of any special licensee or royalty fees resulting from use of programs that require such payments.

DEVELOPER WARRANTIES

AbleSpark represents and warrants that the deliverables for each Assignment will not knowingly: (a) violate any law or regulation, including, without limitation, the laws and regulations governing export control; (b) be defamatory or libelous; (c) be pornographic or obscene; or (d) contain any viruses, Trojan horses, worms, time bombs or other computer programming devices which are intended to damage a user’s system or data or prevent the user from using same.

AbleSpark further represents and warrants that (a) it will use commercially reasonable efforts to insure that all deliverables substantially conform to the acceptance criteria specified in that deliverable’s Assignment for a period of thirty (30) days after the deployment of the deliverable, provided Client makes no changes to the deliverable, the server, the hardware or any technology related to any of them; and (b) there is no outstanding contract, commitment, or agreement to which AbleSpark is a party or legal impediment of any kind known to AbleSpark which conflicts with this Agreement or might limit, restrict or impair the rights granted hereunder.

CLIENT WARRANTIES

Client represents and warrants that Assignments made by the Client will not knowingly: (a) violate any law or regulation, including, without limitation, the laws and regulations governing export control; (b) be defamatory or libelous; (c) be pornographic or obscene; or (d) contain any viruses, Trojan horses, worms, time bombs or other computer programming devices which are intended to damage a user’s system or data or prevent the user from using same.

Client further represents and warrants that (a) Client has all rights necessary for the production, distribution, exhibition and exploitation of the deliverables contained within each Assignment and (b) there is no outstanding contract, commitment or agreement to which Client is a party or legal impediment of any kind known to Client which conflicts this Agreement or might limit, restrict or impair the rights granted hereunder.

LIMITATION OF LIABILITY.

Client agrees that AbleSpark, and its agents, servants or employees shall not be liable for any incidental or consequential damages that arise from AbleSpark’s performance in this agreement or AbleSpark’s failure to perform any aspect of this agreement in a timely manner. Furthermore, AbleSpark disclaims all implied warranties, including the warranty of merchantability and fitness for a particular use.

INTEGRATED AGREEMENT.

The Client agrees that this Agreement is the entire agreement between the Client and AbleSpark regarding the subject matter of the Agreement; and supersedes all prior representations, understandings, or agreements regarding the subject matter of the Agreement.

SEVERABILITY

The Client agrees that if any of the terms or conditions in their Agreement with AbleSpark are properly found to be invalid or unenforceable by a government body, the remaining terms or conditions of the Client’s Agreement shall not be affected by the finding and shall continue to apply.

TERMINATION BY CLIENT

To terminate any Agreement or Service, the Client must submit a written request via postal mail, email, or fax that includes the Client’s legal name, address, contact information, signature, and the reason for termination. All termination requests must be received by AbleSpark at least 30 days prior to the renewal date of the Service or Assignment being cancelled. Upon receipt of the Client’s termination request, AbleSpark will cancel the Service or Assignment specified by the Client and will stop all work. The acceptance of a termination request by AbleSpark does not relieve the Client from any fees due for services rendered prior to the receipt of the termination request or relieve the Client from any amounts due on a minimum length contract. The Client agrees that by terminating a Service or Assignment with AbleSpark, Client has already received all services, rights, and other obligations owed by AbleSpark under the Agreement.

TERMINATION BY ABLESPARK

AbleSpark reserves the right to terminate any Service or Assignment at any time without notice, refund, or compensation in the event that the Client does anything that in AbleSpark’s sole discretion violates any of the terms or conditions of this Agreement; acts in an unprofessional or abusive manner towards any of AbleSpark’s employees, contractors, or affiliates; damages AbleSpark’s good name or standing in the community; damages the good name or standing in the community of any of AbleSpark’s affiliates, subsidiaries, or partners; uses any service provided by AbleSpark for pornography, sex-related merchandising, promoting illegal activity, promoting content that may be considered detrimental to the public health, safety, or welfare; or interfering with other Clients’ use and enjoyment of any service provided by AbleSpark. Clients that violate any of these conditions will be subject to a $250 per hour charge for administration and investigation costs.

CHOICE OF LAW

This Agreement shall be treated as though it were executed and performed in Anne Arundel County, Maryland, and shall be governed by and construed in accordance with the laws of the United States of America and of the State of Maryland, without regard to conflict of law principles. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. All legal proceedings arising in any way out of this Agreement shall be brought solely in a court of competent jurisdiction in Anne Arundel County, Maryland. The Client expressly submits to the jurisdiction of said courts; and the Client consents to extra-territorial service of process.

CREDIT LINES

AbleSpark shall be given credit on all documentation, packaging, artwork, media, and websites arising from this agreement. Credit lines may include a hyperlink to AbleSpark’s website.

NO WAIVER

Any failure or refusal of AbleSpark to exercise any right or form of relief described herein against Client shall not constitute a waiver of the right to exercise such rights or relief in the future.