Terms & Conditions
THIS AGREEMENT is made by and between Expert Marketing Advisors LLC, a California corporation with offices at 334 Encina Ave, Redwood City, CA 94061, (the “Company”), and the Client (the “Client”). The Effective Date of this Agreement shall be the date on which Company receives a copy of this Agreement.
1. SCOPE OF AGREEMENT.
A. Development of Strategy and Optimization Services.
Client hereby engages and retains Company and Company agrees to provide Client with Programs and Events services and to create, install, manage, develop and employ custom Programs and Events strategies according to the terms listed on the Scope of Work, and incorporated as though fully set forth herein. Company shall perform the Services in a professional manner and devote such amount of time as is necessary or appropriate in order to properly and timely complete the Services. Client acknowledges that the provision of some aspects the Services by Company may require Client’s cooperation and assistance by Client. To the extent reasonably requested by Company, Client agrees to provide Company with reasonable cooperation and assistance in a timely manner.
B. No Guarantees. Client acknowledges and agrees that:
i) Company shall not be responsible for policies of third party marketing, directories or other Web Sites (“Third-party resources”) that Company may submit to with respect to the classification or type of content it accepts whether now or in the future. Client agrees not to hold Company responsible for any liability or actions taken by Third-party resources under this Agreement.
ii) The nature of many of the strategies Company may employ under this Agreement and the resulting outcomes are competitive in nature as they are subject to the actions taken by third parties. Company does not guarantee number one (1) positions, consistent positioning, “top 10 positions” or guarantee placement for any particular keyword, phrase or search term. Company’s past performance is not indicative of any future results Client may experience. Client further acknowledges and agrees that due to changes in the relative competitiveness of search terms, changes in the Programs and Events strategies and other factors are beyond Company’s control, and Company cannot guarantee any specific increase in search engine rankings, traffic or sales.
iii) Unless paid inclusion programs are employed, Programs and Events strategies and submissions to marketing and plans can take an indefinite amount of time for inclusion, which times are outside of the control of Company. . Each edit or change made will repeat these inclusion times.
iv) Company does not warrant that Programs and Events strategies will work on all platforms.
v) Company does not own or possess the ability to control or change the operations or policies of any search engine. Client acknowledges that search engines may drop listings from its database for no apparent or predictable reason. In the event of a substantive change to the operations or policies of a search engine, Company shall re-submit resources to the search engine based on then current operations and policies of the search engine in question.
vi) During the term of this Agreement, Company will endeavor to make to keep Client informed of any search engine changes that Company is made aware of that impact any of the Programs and Events Services. Client acknowledges that Company may not become aware of changes to Third-party resources, industry changes or any other changes that may or may not affect Programs and Events services.
vii) Some of the Third-party resources only offer paid inclusion programs that require a fee or continued maintenance or performance fees. Client is solely responsible for all paid inclusion fees and must maintain adequate funds in any Third-party accounts in order to maintain inclusion in these resources.
viii) Company reserves the exclusive right, for the duration of this Agreement, to approve or reject any design strategies, existing code or other techniques, whether requested by Client or presently employed by Client that are considered by Company to be detrimental to Programs and Events strategies and the execution of Company’s services under this Agreement.
2. TERM AND TERMINATION.
The term of this Agreement (the “Term”) shall commence on the Effective Date and conclude on the last calendar day of the twelfth (12) month following the Effective Date, unless otherwise terminated as provided herein. Upon conclusion of the Term, Client may terminate this Agreement, or renegotiate a new agreement. If Client neither terminates the agreement nor renegotiates, Company will continue to provide service on a month-to-month basis. Client shall pay Company a monthly fee as set forth on the attached Exhibit B. If service continues on a month-to-month basis, Client shall provide Company with written notice sixty (60) days prior to termination of service.
A. Company shall have the right to immediately terminate this Agreement in the event that (a) Client fails to make pay the Initial Payment in accordance with the terms of Paragraph 3.1 or (b) Company provides Client notice that two (2) Monthly Invoices are past due and Client fails to make payment within thirty (30) days from the date the notice was sent by Company.
3. FEES AND PAYMENTS.
In consideration for Company’s provision of the Services, Client shall pay Company the fees set forth on the attached Schedule B.
A. Client’s initial payment due under this Agreement (the “Initial Payment”) shall be made within thirty (30) days of Client’s receipt of Company’s invoice for the Initial Payment. Thereafter, Company will invoice Client bi-monthly for the amounts set forth in Schedule C (the “Bi-Monthly Invoices”). Client shall pay all Monthly Invoices within thirty (30) days of Client’s receipt thereof. Payments due and not timely paid in accordance with the terms of this Agreement shall bear interest from the date payment is due at the rate of 1.5% per month.
B. Early Termination Fee. If Client terminates this Agreement without cause prior to the end of its Term, Client shall pay to Company all pre-approved fees and charges, and any non-cancellable fees or charges through the Effective Date of the termination.
C. Post-Term Month-to-Month Cancellation Fee. If Client terminates this Agreement during month-to-month service after initial Term has concluded, Client shall pay to Company all pre-approved fees and charges, and any non-cancellable fees or charges for thirty (30) days from Company receipt of written notice of cancellation.
D. Client’s obligation to pay all open invoices for services previously rendered and any late fees survives the termination of this Agreement. Should the Agreement be terminated by Company due to Client’s failure to timely make the Initial Payment, Client shall be obligated to pay Company a prorated amount equal to the cost of Company’s services performed for Client from the Effective Date through the date that Company terminates this Agreement.
E. All payments made by checks drawn from banks originating outside of the United States shall be assessed a $25 service charge.
F. All payments made by international wire transfer shall be assessed a ($35) service charge. Thee shall be no fee for domestic ACH transfers.
In the course of the performance of this Agreement, the Parties may disclose to each other technical information, program information, financial information, operational information, marketing information, pricing information, strategic plans, business plans, product ideas, product descriptions, promotional plans, contracts, manuals, protocols and other information that is regarded as confidential and proprietary to the disclosing Party (“Proprietary and Confidential Information”). The Parties agree to take all reasonable steps to protect and keep such Proprietary and Confidential Information confidential. The Parties further agree to not (i) use Proprietary and Confidential Information for themselves to the detriment of the other party; (ii) use or disclose such Proprietary and Confidential Information to any third party; and (iii) use Proprietary and Confidential Information for any purpose other than those specifically contemplated by this Agreement. In the event this Agreement expires or terminates for any reason, each Party return promptly all of the other Party’s Proprietary and Confidential Information in its possession, including all electronic, digital and hard copies thereof. Notwithstanding anything to the contrary contained in this Agreement, if Client or Company breaches any of their obligations with respect to confidentiality and unauthorized use of Proprietary and Confidential Information hereunder, the non-breaching party shall be entitled to money damages and to equitable relief to protect its interest therein, including but not limited to, injunctive relief. The provisions of this Paragraph 5 shall survive the expiration or termination of this Agreement.
5. INTELLECTUAL PROPERTY.
In performing the Services, Company expects to employ its proprietary technology and other intellectual property (“Company Intellectual Property”). Company owns all rights in Company Intellectual Property. Company grants Client a nonexclusive license to use Company Intellectual Property solely in connection with Client’s website, provided that Client has paid all fees required by this Agreement. Other than the rights granted to Client pursuant to the license set forth herein, nothing contained in this Agreement shall transfer any right, title or interest in or to any of the Company Intellectual Property to Client. All intellectual property developed by Company in connection with providing the Services shall be the property of Client, including but not limited to any changes or modifications to the Client website or any changes, improvements or modifications to existing Client profiles of a third party web analytics account(s). All data, information and intellectual property provided in connection with the Parties’ performance of the terms of this Agreement shall be and remain the property of the Party providing such data, information and intellectual property. For the purposes of this Agreement, the term “intellectual property” means all of the trademarks, service marks, trade dress, logos, slogans, trade names, internet domain names, corporate names, works of authorship (whether or not copyrightable), and copyrights, trade secrets, knowhow and other confidential, proprietary or business information, including ideas, research and development, processes, techniques, methods, designs, technical and other data, computer software, software documentation and all other intellectual property and proprietary rights. The Parties hereby covenant and agree that they shall treat all intellectual property as Confidential Information as described in paragraph 4 of this Agreement, and that they will not communicate, disclose or otherwise make available to any person or entity any intellectual property. The provisions of this Paragraph 5 shall survive the expiration or termination of this Agreement.
6. ACCESS TO ANALYTICS ACCOUNTS.
In connection with the Services, Company may require access to Client’s Google Analytics, Salesforce or other web analytics accounts (the “Client Accounts”). If requested by Company, Client shall provide Company with usernames and passwords which shall enable Company to access the Client Accounts. Client warrants and represents that it is permitted to and otherwise possesses all rights to provide this information to Company. Company shall only access the Client Accounts to the extent necessary to perform the Services and, upon the expiration or termination of this Agreement, shall destroy all usernames and passwords provided by Client.
7. LIMITATION OF LIABILITY.
EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES SET FORTH IN SECTION 11 OR CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF CONFIDENTIALITY OBLIGATIONS: THE SERVICES PROVIDED BY COMPANY PURSUANT TO THIS AGREEMENT ARE PROVIDED BY COMPANY ON AN "AS IS," "AS AVAILABLE" BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS RESPECTIVE AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, THE "COMPANY BUSINESSES") MAKE NO REPRESENTATION ABOUT THE SUITABILITY OF THE SERVICES FOR ANY PURPOSE. THE COMPANY BUSINESSES DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE COMPANY BUSINESSES OR THEIR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES, THE DELAY OR INABILITY TO USE THE SERVICES OR OTHERWISE ARISING IN CONNECTION WITH THE SERVICES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
CLIENT EXPRESSLY WAIVES ALL CLAIMS FOR DAMAGES, DIRECT OR INDIRECT, BASED ON ANY AND ALL THEORIES OF LIABILITY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WHETHER JOINT OR SEVERAL, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY COMPANY, AND/OR THE DELAY OR THE INABILITY TO USE THE SERVICES. CLIENT AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY FOR ALL CLAIMS FOR DAMAGES IS THE LESSER OF FIVE HUNDRED THOUSAND DOLLARS ($500,000.00), OR THE AMOUNTS ACTUALLY PAID BY CLIENT TO THE COMPANY FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT GIVING RISE TO THE CLAIM. NO CLAIM MAY BE BROUGHT BY CLIENT UNDER THIS AGREEMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF THE CLAIM. THESE LIMITATIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
8. RELATIONSHIP OF THE PARTIES.
It is understood and agreed that this Agreement does not create any relationship of association, employment, partnership or joint venture between the Parties nor constitute either party as the agent or legal representative of the other for any purpose whatsoever; and the relationship of Company to Client for all purposes shall be one of independent contractor. Neither Party shall have any right or authority to create any obligation or responsibility, express or implied, on behalf or in the name of the other Party, or to bind the other Party in any manner whatsoever. Employee Solicitation/Hiring During the period of this agreement and for twenty-four (24) months thereafter, neither party shall directly or indirectly solicit or offer employment to or hire any employee, former employee, subcontractor, or former subcontractor of the other. The terms "former employee" and "former subcontractor" shall include only those employees or subcontractors of either party who were employed or utilized by that party on the Effective Date of this Agreement.
9. DISPUTE RESOLUTION.
For any dispute between the Parties that arises out of or is related to Agreement, the Parties shall first attempt to resolve the dispute through amicable consultation. If the dispute is not resolved within 60 days of a Party being placed on notice of the dispute, the Parties shall have the right to submit the dispute to final and binding arbitration as the sole and exclusive remedy for such dispute. The arbitration shall be conducted in accordance with the arbitration rules of the American Arbitration Association and held in Redwood City, California. This Agreement shall be governed in accordance with the laws of the State of California. In the event that any Party to this Agreement commences an arbitration to interpret or to enforce this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, expert fees, costs and expenses, incurred in connection with the mediation and arbitration.
This Agreement contains the entire Agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by both parties hereto. There are no Third Party beneficiaries to this Agreement. The language used in this Agreement shall be deemed to be language chosen by both parties herein to express their mutual intent, and no rule of construction against either party shall apply.
B. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of Client and Company and their respective successors and assigns, and neither party may assign any of their obligations under this Agreement without the prior written consent of the other party.
Captions in this Agreement are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or any of its terms.
D. Amendment and Modification.
The terms and provisions of this Agreement shall not be modified or amended, or any of the provisions hereof waived, temporarily or permanently, without the prior written consent of each of the Parties.
E. No Waiver.
The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement. Other than expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies at law or in equity.
Each party (an "Indemnifying Party") agrees to defend at its expense, indemnify, and hold the other party and its affiliated entities, and its and their directors, officers, employees and agents (the "Indemnified Party"), harmless from and against losses resulting from any claims, suits, actions or other proceedings (collectively, "claims") made by a third party to the extent that such claims arise from or relate to: (i) a violation of law asserted against the Indemnified Party to the extent caused by the acts or omissions of the Indemnifying Party in the course of its performance of the Agreement, (ii) a breach of or inaccuracy in the Indemnifying Party's representations and warranties set forth in the Agreement, or (iii) the Indemnifying Party's error or omission in the performance of or failure to perform its obligations set forth in the Agreement; except to the extent such claims result from the Indemnified Party's acts or omissions, or materials provided by it.
G. Use of Material for Promotional Purposes.
Use of Logo. Unless otherwise pre-approved in writing by Client’s Public Relations staff/consultants and its legal counsel Client grants Company the right to use its work solely in producing Programs and Events for promotional purposes and/or to cross-link it with other advertising developed by Company. Client authorizes the Company to use its name, logo and/or trademark without notice to or consent by such Client, in connection with certain promotional materials that Company may disseminate to the public. The promotional materials may include, but are not limited to, brochures, videotape, internet website, press releases, advertising in newspaper and/or other periodicals, lucites, and any other materials relating the fact that Client has a relationship with Company and such materials may be developed, disseminated and used without Client’s review. Nothing herein obligates the Company to use a Client name, logo and/or trademark, in any promotional materials of the Company.
H. No Responsibility for Loss.
Company shall have no responsibility for any third-party disrupting, intruding or otherwise copying files in part or in whole on all or any part of the work performed for Programs and Events. Company is not responsible for any down time, lost files, improper links or any other loss that may occur in the operation of Programs and Events under this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
Any notice required to be given under this Agreement shall be in writing and sent by overnight delivery service. Notices to Company shall be addressed to the attention of Expert Marketing Advisors, 334 Encina Ave. Redwood City, CA 94061. Notices to Client shall be to its signatory at the address of Client which appears under its acceptance to this Agreement.
K. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors or heirs, distributees and personal representatives.
L. No Assignment.
Client shall not assign this Agreement without the prior written consent of Company which Company may withhold in its sole discretion.
This Agreement may be executed in multiple counterparts, each of which shall be considered an original, and which shall together constitute one Agreement. This Agreement may be signed electronically or by facsimile transmission, or by any other legal means.
Each party represents and warrants that, on the date below, they are authorized to enter into this Agreement in its entirety and to duly bind their respective principals by their submission below: