Terms and Conditions

THESE TERMS AND CONDITOINS FOR DIGITAL SERVICES (this “Agreement”), last modified November 18, 2022, (“Effective Date”), governs the relationship by and between Chek Creative(“Company”) with an office at 659 High St #17 Worthington, Ohio, 43085 and you (“Client”). By receiving services from the Company, you agree to be bound by the entirety of this Agreement. Company and Client may be referred to collectively as the “Parties” or individually as a “Party”.

1. Scope of Services

1.1 Company agrees to provide to Client certain digital services (the “Services”) as described in one or more statements of work (each a “SOW”) that Company and Client may enter into in writing from time to time. Company shall perform such Services in accordance with the schedule described in the SOW. Each SOW shall include: (a) a description of the scope of Services, including the nature and extent of the work, the deliverables to be provided by Company; (b) the fees and payment milestones; (c) a primary contact for the SOW for each Party; and (d) and any other transaction-specific terms applicable to the SOW. The Parties understand that in order to reflect changes in the Services the SOW will be subject to amendment from time to time in accordance with the procedures described below. Company shall not be required to commence the Services until Client has executed and returned the applicable SOW.

1.2 Any changes, additions, deletions or modifications to an executed SOW may affect the schedule for the Services and/or associated fees. Any such changes or modifications to the SOW of any nature shall be made in writing and be authorized by both Parties prior to the commencement of any such changes, additions, deletions, or modifications to the SOW.

2. Term

This Agreement shall be effective as of the Effective Date and, unless sooner terminated in accordance with its terms, shall remain in effect for a period of six (6) months. This Agreement shall thereafter be extended for additional six (6) month periods unless one Party notifies the other Party at least thirty (30) days prior to the then scheduled expiration date of the Agreement of an intent to terminate. Notwithstanding the foregoing, in no event shall this Agreement terminate until all Services have been completed on SOWs that have not been terminated.

3. Charges and Payment

3.1 Client shall pay Company for the Services at the rates and/or prices set forth in the applicable SOW.

3.2 Each invoice must describe all Services rendered in sufficient detail to enable Client to identify the Services and, for any Services provided on an hourly rate basis, identify the Company staff who performed the Services, the time spent performing the Services, and the related hourly rate(s).

3.3 Client shall reimburse Company for the actual cost of all reasonable travel expenses incurred by Company in the performance of the Services that are approved by Client in an SOW. Approved mileage shall be reimbursed at the then-current IRS approved rate. Company shall provide written documentation for all mileage and expenses invoiced in connection with the Services.

3.4 Company shall issue invoices to Client at the end of every month via email with payment terms of Net 7 days for all amounts that are not disputed by Client. Interest may be charged on undisputed past due amounts at the rate of 1% per month or the maximum interest rate legally permissible, whichever is less. If Client disputes an invoice amount, Client shall (a) give the Company written notice within seven (7) days after Client's receipt of the Company's invoice, and (b) timely pay all undisputed amounts.

4. Ownership and License

4.1 Generally.

The work product designed and developed as part of the Services may include software, data, modules, components, designs, utilities, subsets, objects, program listings, tools, models, methodologies, programs, systems, analysis frameworks and specifications and other materials (the “Software”). In addition to any custom designed Software, SOWs may specify that Company purchase and/or install third party software, hardware, or other items (“Third Party Products”). Except for Preexisting Works (as defined below) and Third Party Products, and except as otherwise expressly stated in any SOW, Company hereby assigns and Client shall own any and all rights, title and interest, including, without limitation, copyrights, trade secrets and proprietary rights, in and to any Software developed or prepared specifically for Client hereunder. Software developed specifically for Client hereunder shall be deemed to be “works made for hire” under the federal copyright laws. Company agrees to give Client reasonable assistance, at Client’s expense, to perfect such assignment of such rights, titles and interest.

4.2 Preexisting Works.

Notwithstanding the foregoing, the Software may also include data, modules, components, designs, utilities, subsets, objects, program listings, tools, models, methodologies, programs, systems, analysis frameworks, leading or best practices and specifications owned or developed by Company prior to, or independently from, its engagement hereunder (“Preexisting Works”) and Company retains all rights thereto. Company hereby grants to Client a nonexclusive, perpetual, non-transferable royalty-free license to use the Preexisting Work solely for the purpose of operating or modifying the Software for its own internal business purposes. Company shall identify any Preexisting Works by notice in writing to Client. Client may copy the Preexisting Work as required for internal use, provided that any such copies of the Preexisting Work must contain Company's copyright and/or other proprietary notices and the Preexisting Work shall not be provided to any third party unless such third party (a) is acting as an agent or employee of Client, (b) has a need to be provided with the Preexisting Work as part of Client's permitted use of the Preexisting Work, and (c) agrees to be bound in writing by confidentiality terms substantially similar to those contained in this Agreement with respect to Confidential Information.

4.3 Know How and Technical Elements.

Company retains the right to use its general knowledge, experience, and know-how, including processes, ideas, concepts and techniques developed in the course of performing the Services. Company shall be free to perform similar services for its other clients using its general knowledge, skills and experience. Company shall specifically be subject to the confidentiality provisions of Section 8 in connection with the rights set forth in this paragraph.

5. Warranties

5.1 Each Party represents and warrants that it has the full right, power and authority necessary to enter into this Agreement and to grant the rights contained herein and that by entering into this Agreement it will not breach or violate any provisions of any other agreement to which it is bound.

5.2 Company warrants that it will perform the Services using reasonable care and skill and in a workmanlike manner consistent with industry standards and in accordance with applicable law. The Services are warranted to substantially conform to the applicable SOW and any functional specifications therein at the time of acceptance.

5.3 Company shall assign all warranties associated with Third Party Products to Client upon the earlier to occur of payment by or delivery to Client.

6. Nondisclosure of Confidential Information

6.1 “Confidential Information” means all information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether in writing, machine-readable form, or orally, and designated by the Disclosing Party as confidential, including but not limited to, source code, trade secrets, prospects, clients, vendors, finances and other business information.

6.2 The Receiving Party shall treat such Confidential Information as confidential and use the same degree of care as it employs in the protection of its own confidential information from accidental or inadvertent disclosure, but in no event less than a reasonable degree of care. The Receiving Party will only use the Confidential Information in connection with its business dealings with the Disclosing Party, and shall disclose Confidential Information only to employees or contractors having a need to know, provided such employee or contractor agrees to comply with the terms of this Article.

6.3 Information shall not be considered “Confidential Information” if: (a) it is in the public domain at the time of disclosure, or enters the public domain without breach of this Agreement; (b) it is known to the Receiving Party prior to the disclosure, or it is independently developed by the Receiving Party without the use of the Confidential Information of the Disclosing Party; (c) it is obtained by the Receiving Party in good faith from a third party not under obligation of confidentiality to the Disclosing Party; (d) it is required to be disclosed by a regulatory agency or court of law.

6.4 Upon the Disclosing Party’s request, the Receiving Party must promptly return all Confidential Information and all copies or other reproductions of it and all other materials derived from it which are in the Receiving Party’s control. The Receiving Party must represent in writing to the Disclosing Party that it has complied with this section. Notwithstanding the foregoing, (a) the Receiving Party shall not be obligated to return or destroy any Confidential Information that the Receiving Party is retaining pursuant to applicable legal or regulatory requirements or a document retention hold established in connection with any civil or criminal investigations or litigation, in which event the Confidential Information shall be retained by the Receiving Party until such time as those requirements or the document retention hold is no longer in effect, at which time the Confidential Information shall be returned to the Disclosing Party or destroyed as aforesaid; and (b) to the extent that the Receiving Party’s computer back-up procedures create copies of the Confidential Information, the Receiving Party may retain such copies in its archival or back-up computer storage for the period the Receiving Party normally archives backed-up computer records. Any such documents or abstract so created will be retained subject to this Agreement until they are destroyed or erased.

6.5 If the Receiving Party becomes legally compelled to disclose any of the Confidential Information, the Receiving Party must give the Disclosing Party prompt written notice of the requirement so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the terms of this Agreement, or both. If a protective order or other remedy is not obtained or if the disclosing Party waives compliance, the Receiving Party must provide only that limited portion of the Confidential Information that it is advised by opinion of counsel it is legally required and to exercise reasonable efforts to obtain confidential treatment for that Confidential Information.

6.6 The Disclosing Party is entitled to equitable relief, including injunction and specific performance, in addition to all other remedies available at law or in equity arising from a breach of this Article 6.

7. Indemnification and Limitation of Liability

7.1 Except with respect to infringement claims, which shall be governed by the terms of Article 8 hereof, Company agrees to indemnify, defend and hold harmless Client from and against any and all amounts payable under any claims, suits, judgments, verdicts, court orders or settlements for death or bodily injury or the damage to or loss or destruction of any real or tangible personal property arising out of the performance of this Agreement brought against Client pursuant to any legal theory whether sounding in contract, tort, or otherwise to the extent that said amount payable is the result of Company’s negligence, gross negligence, omissions or intentional acts.  

7.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SERVICES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, INJURIES TO PERSONS OR PROPERTY, LOSS OF USE OF PROPERTY, LOST PROFITS, LOSS OR DAMAGE TO DATA OR RECORDS OR DAMAGES FOR WHICH A PARTY MAY BE LIABLE TO OTHER PERSONS OR ENTITIES, EVEN IF A PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.3 Notwithstanding the foregoing, in no event shall a Party's liability be limited in amount of damages arising from (a) such Party’s gross negligence or willful misconduct; (b) such Party’s breach of its confidentiality obligations under Article 6 of this Agreement; or (c) Company’s obligations under Article 8 of this Agreement with respect to indemnification for infringement.

8. Non-Infringement

8.1 Company covenants that it will either own or otherwise have sufficient rights to license to Client all of the Software furnished by Company in connection with the Services.

8.2 Company shall defend Client against any claim that the Software infringes a copyright, patent, trademark or trade secret right of any third party. Company shall pay all cost and damage awards resulting from such a claim provided that (a) Client promptly notifies Company in writing of the claim; (b) Company has sole control of the defense and all related settlement negotiations; and (c) Client gives Company reasonably necessary information and assistance to settle and/or defend such claims.

8.3 If a third party infringement claim is sustained in a final judgment from which no further appeal is taken or possible, and such final judgment includes an injunction prohibiting Client from continued use of the Software, Company shall, at its sole election and expense, procure for Client the right to continue to use the Software or replace or modify the Software to make it non-infringing without materially affecting its performance or utility. If neither of the foregoing options is reasonably available, Company will issue a refund equal to the original price paid by Client for the infringing Software. If Client is not given the right to continue to use the Software, Client must return all copies of Software and related documentation.

8.4 Company shall have no liability regarding any claim of infringement to the extent such claim is based upon (a) design specifications provided by Client, (b) modification of Software without the consent of Company; (c) combination or operation of the Software with hardware, software, or other items not provided by Company; or (d) use of the Software in any manner not contemplated by this Agreement, the SOW, or in documentation provided by Company.

9. Termination

9.1 Termination for Cause.

Either Party may terminate this Agreement or any SOW hereunder for cause without penalty in the event that (a) the other Party breaches any material term of this Agreement and fails to cure within fourteen (14) days from receipt of notice thereof or (b) the other Party becomes subject to a proceeding under any federal or state bankruptcy or insolvency laws which proceeding is not dismissed or stayed within thirty (30) days. Prior to such termination, the Party intending to terminate shall first give the other Party written notice of its intent to do so, in which notice the problem(s) constituting the cause for termination are clearly described.

9.2 Client’s Termination for Convenience

9.2.1 Client may terminate this Agreement or any SOW without cause and for Client’s convenience by giving written notice to Company of its intent to terminate ten (10) days before termination is effective.

9.2.2 If Client terminates the Agreement or any SOW for convenience, Company must, unless the notice of termination directs otherwise, (a) immediately stop the discontinued Services on the date of termination, place no further orders or contracts for materials, equipment, services, facilities, or otherwise, except as may be necessary to complete Services that are not discontinued; and (b) promptly make every effort to procure cancellation upon terms satisfactory to Client of all orders and contracts to the extent they relate to the performance of Services that is discontinued.

9.2.3 If Client terminates the Agreement or any SOW for convenience, but subject to other provisions of the Agreement, Client will pay Company for Services performed before the date of termination, and for reasonable expenses Company incurred that are otherwise directly attributable to the termination, but will not be required to pay Company anything on account of Services not performed.

10. Relationship of the Parties

Company is an independent contractor in the performance of the Services under this Agreement. Nothing in this Agreement or any SOW shall be deemed to create an employment, partnership or joint venture relationship between Client and Company or between Client and any Company employee. In its capacity as an independent contractor, Company has the right to perform services for others during the term of this Agreement.

11. Excusable Delays

Any failure or delay by either Party in performing its obligations under this Agreement shall be excused to the extent that such failure or delay is caused by conditions beyond its reasonable control, including, without limitation, Acts of God, accidents, labor disputes, acts of civil or military authorities, or scheduling delays or delays in providing necessary resources by the other Party or the other Party’s third party contractors.

12. Miscellaneous

12.1 Subcontracts/Assignment.

Either Party may delegate any or all of its duties to subcontractors, subsidiaries or parent or affiliated companies, provided that the delegating Party (a) obtains the prior consent of the other Party and (b) will remain liable for its respective duties. Neither Party may assign or otherwise transfer its rights under this Agreement except with the prior written consent of the other Party.  Notwithstanding the foregoing, consent to assignment is not required, but prior written notice of the assignment is required, if there is a successor in interest by merger, operation of law, assignment, purchase, or otherwise of the entire business of a Party or of a substantial portion of the business of a Party. Such successor will acquire all rights and obligations of such Party.

12.2 Facsimile Signatures.

Facsimile signatures of this Agreement and any SOW shall in all respects have the same weight, force and legal effect and shall be fully as valid, binding and enforceable as if such signed facsimile copies were original documents bearing original signatures.

12.3 Amendment/Waiver.

This Agreement may not be amended, modified or waived except by a writing signed by an authorized representative of each Party. No waiver of or any failure or omission to enforce any of the provisions hereof shall be construed to be a waiver of the right of such Party thereafter to enforce any such provisions.

12.4 Severability.

If any provision of this Agreement shall be deemed invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to cure such invalidity or unenforceability; provided, however, if such modification is not possible without creating a material conflict with another provision of this Agreement, such invalid or unenforceable provision shall be deemed stricken from this Agreement.

12.5 Survival of Terms.

Termination or cancellation of this Agreement for any reason shall not release either Party from any liabilities or obligations set forth in or arising from this Agreement which remain to be performed or by their nature would be intended to be applicable following any such termination or cancellation, including but not limited to the provisions of Articles 6, 7 and 8.

12.6 Notices.

Wherever a Party is required or permitted to give notice to the other pursuant to this Agreement, such notice is deemed given: (a) when delivered in hand; (b) on the date delivery is made or refused, if mailed by registered or certified United States mail, return receipt requested, postage prepaid; or (c) one day after it is sent by courier or facsimile transmission if receipt is verified by the receiving Party.

12.7 Governing Law and Jurisdiction.

This Agreement is governed by and construed in accordance with the laws of the State of Ohio, excluding its choice of law principles. The Parties agree that the courts located in Franklin County, Ohio shall have exclusive jurisdiction over any action concerning or relating to this Agreement or any dispute arising out of this Agreement.

12.8 Complete Agreement.

This Agreement and any Statement(s) of Work constitute the complete agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous oral or written representations, understandings or agreements. Any pre-printed terms and conditions on any quote or proposal are deemed void. In the event of a conflict between any term of this Agreement and the term of any SOW, the provision of this Agreement shall prevail, except in such cases where the Parties expressly provide that the SOW provision will override a provision herein; in such case, the SOW shall prevail.