SERVICE AGREEMENT
This SERVICE AGREEMENT (this “Service Agreement”) is approved with a digital
signed and made effective as of April 1, 2020 by and between ViewSpark, Inc. (“Service
Provider”) and the associated Pentecostal Church of God affiliated signor (“Customer”)
RECITALS
WHEREAS, Service Provider has certain experience, knowledge and abilities that Customer
wishes to utilize in connection with its business; and
WHEREAS, Service Provider is willing to provide services to Customer and desires to accept
the arrangement upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,
the parties agree as follows:
1. Applicability.
(a) This Service Agreement, along with the Terms of Service available at
www.viewspark.org (the “Terms of Service” and together with this Service Agreement,
the “Agreements”), are the only terms that govern the provision of services by Service
Provider to Customer.
(b) These Agreements comprise the entire agreement between the parties, and
supersede all prior or contemporaneous understandings, agreements, negotiations,
representations and warranties, and communications, both written and oral. In the event
of any conflict between this Service Agreement and the Terms of Service, the Terms of
Service shall govern, provided, however, that any future changes to the Terms of Service
shall not modify the Agreements unless such changes are consented to by the parties in
writing in advance.
(c) This Service Agreement prevails over any of Customer's general terms
and conditions regardless whether or when Customer has submitted its request for
proposal, order, or such terms. Provision of services to Customer does not constitute
acceptance of any of Customer's terms and conditions and does not serve to modify or
amend this Service Agreement.
2. Services. Service Provider shall provide the following services to Customer (the
"Services") in accordance with this Service Agreement:
(i) Provide access to the ViewSpark Fundraising app platform and
desktop admin portal that enables the fundraiser to deliver an email or SMS text
to its list of users.
-2-
(ii) Design and host a client giving page that is accessible from all
ViewSpark communications to donors.
3. Performance Dates. Service Provider shall use reasonable efforts to meet any
performance dates specified in Section 2, and any such dates shall be estimates only.
4. Customer's Obligations. Customer shall:
(a) cooperate with Service Provider in all matters relating to the Services and
provide such access to Customer's premises, and such office accommodation and other
facilities as may reasonably be requested by Service Provider, for the purposes of
performing the Services;
(b) respond promptly to any Service Provider request to provide direction,
information, approvals, authorizations or decisions that are reasonably necessary for
Service Provider to perform Services in accordance with the requirements of this Service
Agreement;
(c) provide such customer materials or information as Service Provider may
request to carry out the Services in a timely manner and ensure that such customer
materials or information are complete and accurate in all material respects; and
(d) obtain and maintain all necessary licenses and consents and comply with
all applicable laws in relation to the Services before the date on which the Services are to
start.
5. Customer's Acts or Omissions. If Service Provider's performance of its
obligations under this Service Agreement is prevented or delayed by any act or omission of
Customer or its agents, subcontractors, consultants or employees, Service Provider shall not be
deemed in breach of its obligations under this Service Agreement or otherwise liable for any
costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising
directly or indirectly from such prevention or delay.
6. Change Orders.
(a) If either party wishes to change the scope or performance of the Services,
it shall submit details of the requested change to the other party in writing. Service
Provider shall, within a reasonable time after such request, provide a written estimate to
Customer of:
(i) the likely time required to implement the change;
(ii) any necessary variations to the fees and other charges for the
Services arising from the change;
(iii) the likely effect of the change on the Services; and
-3-
(iv) any other impact the change might have on the performance of this
Service Agreement.
(b) Promptly after receipt of the written estimate, the parties shall negotiate
and agree in writing on the terms of such change (a “Change Order”). Neither party
shall be bound by any Change Order unless mutually agreed upon in writing in
accordance with Section 25 .
(c) Notwithstanding Section 6(a) and Section 6(b) , Service Provider may,
from time to time change the Services without the consent of Customer provided that
such changes do not materially affect the nature or scope of the Services, or the fees or
any performance dates set forth herein.
7. Fees and Expenses; Payment Terms; Interest on Late Payments.
(a) In consideration of the provision of the Services by the Service Provider
and the rights granted to Customer under this Service Agreement, Customer shall pay the
following fees:
(i) A monthly subscription fee of $75 billed monthly,
(ii) An hourly rate to be agreed upon per hour for any customized
services performed at the request of the client,
(b) Customer will be invoiced and automatically charged monthly by credit
card,
(c) In the event payments are not received by Service Provider 30 days after
becoming due, Service Provider may:
(i) charge interest on any such unpaid amounts at a rate of 1% per
month or, if lower, the maximum amount permitted under applicable law, from
the date such payment was due until the date paid; and
(ii) suspend performance for all Services until payment has been made
in full.
(d) ViewSpark shall be entitled to change its rates at any time, and if it does
so, it shall provide Customer with an email notification at least thirty (30) days in
advance, and you may elect to terminate the Service prior to such increase becoming
effective by contacting ViewSpark by email.
8. Taxes. Customer shall be responsible for all sales, use and excise taxes, and any
other similar taxes, duties and charges of any kind imposed by any federal, state or local
governmental entity on any amounts payable by Customer hereunder. For the avoidance of
doubt, Service Provider, and not Customer, shall be responsible for all taxes imposed on income
or profits arising from the services Service Provider provides under this Agreement imposed by
any federal, state or local governmental entity.
-4-
9. Intellectual Property. See paragraph 3 of the Terms of Use regarding Service
Provider’s rights with respect to Services Content, Software, ViewSpark Trademarks, User
Content (each of the foregoing as defined in the Terms of Use) and third party materials, and the
licenses that Service Provider grants to Customer. With respect to materials provided by
Customer to Service Provider, including, without limitation, any logos, trademarks, trade dress
or other similar materials, Customer shall retain the ownership of such materials and any
improvements or modifications to such materials made by Service Provider.
10. Confidential Information.
(a) All non-public, confidential or proprietary information of Service Provider
and Customer, including, but not limited to, trade secrets, technology, information
pertaining to business operations and strategies, and information pertaining to customers,
pricing, and marketing (collectively, “Confidential Information”), disclosed by either
party, whether disclosed orally or disclosed or accessed in written, electronic or other
form or media, and whether or not marked, designated or otherwise identified as
“confidential,” in connection with the provision of the Services and this Service
Agreement is confidential, and shall not be disclosed or copied by either party without
the prior written consent of the other party. Confidential Information does not include
information that is:
(i) in the public domain;
(ii) known to either party at the time of disclosure; or
(iii) rightfully obtained by either party on a non-confidential basis from
a third party.
(b) Each party agrees to use the other party’s Confidential Information only in
connection with the Services and Deliverables.
(c) Each party shall be entitled to injunctive relief for any violation of this
Section by the other party.
(d) Client acknowledges they have current, legal approval to send and solicit
donors and contacts via SMS and MMS messages in accordance with the Telephone
Consumer Protection Act (TCPA).
11. Representation and Warranty.
(a) Service Provider represents and warrants to Customer that it shall perform
the Services using personnel of required skill, experience and qualifications and in a
professional and workmanlike manner in accordance with generally recognized industry
standards for similar services and shall devote adequate resources to meet its obligations
under this Service Agreement.
(b) The Service Provider shall not be liable for a breach of the warranty set
forth in Section 11(a) unless Customer gives written notice of the defective Services,
-5-
reasonably described, to Service Provider within 30 days of the time when Customer
discovers or ought to have discovered that the Services were defective.
(c) Subject to Section 11(b), Service Provider shall, in its sole discretion,
either:
(i) repair or re-perform such Services (or the defective part); or
(ii) credit or refund the price of such Services at the pro rata contract
rate.
(d) THE REMEDIES SET FORTH IN SECTION 11(c) SHALL BE THE
CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SERVICE
PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED
WARRANTY SET FORTH IN SECTION 11(a).
12. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN
SECTION 11(A) ABOVE, SERVICE PROVIDER MAKES NO WARRANTY
WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A)
WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY
AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD
PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING,
COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
13. Limitation of Liability.
(a) IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO
CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE
OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR
PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND
WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE
FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL
PURPOSE.
(b) IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE
LIABILITY ARISING OUT OF OR RELATED TO THIS SERVICE
AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED
THE AGGREGATE AMOUNTS PAID TO SERVICE PROVIDER IN THE SIX (6)
MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM,
OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
14. Termination.
-6-
(a) In addition to any remedies that may be provided under this Service
Agreement, Service Provider may terminate this Service Agreement with immediate
effect upon written notice to Customer, if Customer:
(i) fails to pay any amount when due under this Service Agreement
and such failure continues for 30 days after Customer’s receipt of written notice
of nonpayment;
(ii) has not otherwise performed or complied with any of the terms of
this Service Agreement, in whole or in part; or
(iii) becomes insolvent, files a petition for bankruptcy or commences or
has commenced against it proceedings relating to bankruptcy, receivership,
reorganization or assignment for the benefit of creditors.
(b) Customer may terminate this Service Agreement with immediate effect
upon written notice to Provider. All fees are due at the date of termination.
15. Waiver. No waiver by party of any of the provisions of this Agreement is
effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or
delay in exercising, any rights, remedy, power or privilege arising from this Service Agreement
operates or may be construed as a waiver thereof. No single or partial exercise of any right,
remedy, power or privilege hereunder precludes any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
16. Force Majeure. Neither party shall be liable or responsible to the other, nor be
deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or
performing any term of this Agreement when and to the extent such failure or delay is caused by
or results from acts or circumstances beyond the reasonable control of such party including,
without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war,
invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil
unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor
disputes (whether or not relating to either party's workforce), or restraints or delays affecting
carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or
telecommunication breakdown or power outage.
17. Assignment. Neither party shall assign any of its rights or delegate any of its
obligations under this Service Agreement without the prior written consent of the other party.
Any purported assignment or delegation in violation of this Section is null and void. No
assignment or delegation relieves a party of any of its obligations under this Service Agreement.
18. Relationship of the Parties. The relationship between the parties is that of
independent contractors. Nothing contained in this Service Agreement shall be construed as
creating any agency, partnership, joint venture or other form of joint enterprise, employment or
fiduciary relationship between the parties, and neither party shall have authority to contract for or
bind the other party in any manner whatsoever.
-7-
19. No Third-Party Beneficiaries. This Service Agreement is for the sole benefit of
the parties hereto and their respective successors and permitted assigns and nothing herein,
express or implied, is intended to or shall confer upon any other person or entity any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason of this Service
Agreement.
20. Governing Law and Arbitration. All matters arising out of or relating to this
Service Agreement are governed by and construed in accordance with the internal laws of the
State of California without giving effect to any choice or conflict of law provision or rule
(whether of the State of California or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than those of the State of California.
21. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or
relating to this Service Agreement shall be instituted in the federal courts of the United States of
America or the courts of the State of California in each case located in the City of Carlsbad and
County of San Diego, and each party irrevocably submits to the exclusive jurisdiction of such
courts in any such suit, action or proceeding.
22. Notices. All notices, requests, consents, claims, demands, waivers and other
communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at
the addresses that may be designated by the receiving party in writing. All Notices shall be
delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid),
facsimile (with confirmation of transmission) or certified or registered mail (in each case, return
receipt requested, postage prepaid). Except as otherwise provided in this Service Agreement, a
Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the
Notice has complied with the requirements of this Section.
23. Severability. If any term or provision of this Service Agreement is invalid, illegal
or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other term or provision of this Service Agreement or invalidate or render unenforceable such
term or provision in any other jurisdiction.
24. Survival. Provisions of this Service Agreement, which by their nature should
apply beyond their terms, will remain in force after any termination or expiration of this Service
Agreement including, but not limited to, the following provisions: Governing Law and
Submission to Jurisdiction.
25. Amendment and Modification. This Service Agreement may only be amended or
modified in a writing which specifically states that it amends this Service Agreement and is
signed by an authorized representative of each party.
-8-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first above written.
SERVICE PROVIDER:
ViewSpark, Inc.
Jeff Kliewer
Chief Executive Officer
Customer
Digital Signature
