1. SCOPE OF AGREEMENT
A. Client hereby engages and retains Company and Company agrees to provide Client with marketing services according to the terms and conditions as listed on Company’s website, which sets forth the type of service package and the cost of such services, which terms and conditions are incorporated as though fully set forth herein, (the “Services”). This Agreement governs the terms of the Services provided by Company. Additional Statements of Work may be agreed to by the Parties and any Statement of Work must be signed by both Parties, at which time such additional Statements of Work shall be incorporated into this Agreement as though fully set forth herein. In the event of any conflict or contradiction between the provisions of a Statement of Work and this Agreement, this Agreement will control unless a Statement of Work specifically sets forth an amendment to the Agreement. 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 of 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 in order for Company to effectuate the Services.
B. No Guarantees: Client acknowledges and agrees that:
i) Company shall not be responsible for any 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 Company accepts whether now or in the future.
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 or warrant any 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 marketing 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, marketing strategies and submissions to 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 its strategies will work on or be compatible with 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 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 the 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 by Company and shall reimburse Company for any such fees advanced or paid for by Company and Client must maintain adequate funds in any third-party accounts in order to maintain inclusion in these resources. Company shall provide notice of the fees to be advanced for the benefit of Client.
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 marketing strategies and the execution of Company’s Services under this Agreement provided that in such event, and notwithstanding anything in Section 2, Client may terminate this Agreement upon thirty (30) days written notice to Company.
2. TERM AND TERMINATION
The term of this Agreement (the “Term”) shall commence on the Effective Date and, unless otherwise agreed in writing by both Parties, expire after the number of months of Services purchased by Client (“Initial Term”), unless otherwise terminated earlier as provided herein. The Initial Term may consist of a twelve (12) month, six (6) month or three (3) month period; such period is selected by Client when the subscription for the Services is entered into by the Parties. This Agreement shall automatically renew for a subsequent period of the same length as the Initial Term (a “Renewal Term”), unless either Party gives the other written notice of termination at least thirty (30) days prior to expiration of the current term. Client hereby acknowledges and agrees that the fees for Services provided during for any Renewal Term shall be adjusted by an increase of 8.5%.
A. Either Party may terminate this Agreement for convenience upon thirty (30) days written notice to the other Party. Either Party may terminate this Agreement on thirty (30) days written notice of an uncured material breach. 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.A 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 such notice was sent by Company.
3. FEES AND PAYMENTS FOR SERVICES
In consideration for Company’s provision of the Services, Client shall pay Company the fees set forth in the Master Service Agreement (MSA) and any addendums thereto, (or pursuant to any active Statement of Work fully executed by the parties), or in accordance with the online subscription fees selected by Client.
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, the Company will invoice Client monthly for the amounts set forth in the applicable MSA and any addendums thereto, applicable Statement of Work or in accordance with the online subscription fees selected by the Client (the “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% per month.
B. Early Termination. If Client terminates this Agreement prior to the end of its Term, Client shall pay to Company: (i) all fees for any past Services delivered to Client pursuant to Company’s performance of its obligations hereunder prior to the date of termination by Client; plus (ii) an additional fee equal to the lesser of either: (y) the unpaid fees owed for the balance of the remaining applicable Initial Term or Renewal Term; or (z) one-third (1/3) of the total aggregate fees owed for the entire applicable Initial Term or Renewal Term (“Additional Fee”). For purposes of clarity, 1/3 of a Term of twelve (12) months shall equal a payment of fees to Company covering four (4) months of Services; 1/3 of a Term of six (6) months shall equal a payment of fees to Company covering two (2) months of Services; and 1/3 of a Term of three (3) months shall equal a payment of fees to Company covering one (1) month of Services.
C. Client’s obligation to pay all unpaid invoices for Services previously delivered by Company (and any applicable late fees) and any Additional Fees survive the termination of this Agreement. Should the Agreement be terminated by Company due to Client’s failure to timely make the Initial Payment or other payment hereunder, Client shall be obligated to pay Company a prorated amount equal to the Services delivered to Client from the Effective Date through the date that Company terminates this Agreement.
D. All payments made by checks drawn from banks originating outside of the United States shall be assessed a $50 service charge.
E. All payments made by international wire transfer shall be assessed a $75 service charge. There shall be no fee for domestic ACH transfers or domestic bank-to-bank wire transfers.
4. CONFIDENTIALITY
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 and necessary steps to protect and keep the Proprietary and Confidential Information of the other Party confidential. The receiving Party of Proprietary and Confidential Information shall use no less than a reasonable degree of care to protect and maintain the confidentiality of such Proprietary and Confidential Information.
The disclosing Party shall own all right, title and interest in and to all of its Proprietary and Confidential Information. Except as set forth herein, no license under any patent, copyright, trademark or any other intellectual property right, which exists now or hereafter is obtained by the disclosing Party, is either granted or implied by the disclosure of Proprietary and Confidential Information to a receiving Party.
Notwithstanding the provisions of this Agreement, the receiving Party will have no obligations or restrictions in connection with the use, protection and disclosure of any information which: (a) was rightfully in possession of or known to the receiving Party without any obligation of confidentiality prior to receiving it from the disclosing Party; (b) is, or subsequently becomes, legally and publicly available without breach of this Agreement; (c) is rightfully obtained by the receiving Party from a source other than the disclosing Party without any obligation of confidentiality; or (d) is developed by or for the receiving Party without use of the other Party’s Proprietary and Confidential Information and such independent development can be shown by documentary evidence. The receiving Party may disclose Proprietary and Confidential Information required to be disclosed by law, regulation or a valid court order, provided that the receiving Party: (x) obtains maximum available confidential treatment for such Proprietary and Confidential Information; (y) gives the disclosing Party prompt written notice of such requirement to disclose prior to such disclosure, or as soon as is reasonably practicable, to allow the receiving Party the opportunity to oppose or limit such disclosure or obtain a protective order; and (z) assists the disclosing Party as necessary in obtaining a protective order, opposing or limiting the disclosure of, or securing confidential treatment for the Proprietary and Confidential Information.
The Parties further agree to not (i) use any Proprietary and Confidential Information of the other Party 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 of the other Party for any purpose other than those specifically contemplated by this Agreement. In the event this Agreement expires or terminates for any reason, each Party shall return or destroy 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 Parties acknowledge that unauthorized disclosure or use of Proprietary and Confidential Information of another Party in violation of this Agreement may cause great and irreparable injury to the disclosing Party and that 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 4 shall survive the expiration or termination of this Agreement.
5. INTELLECTUAL PROPERTY
In performing the Services, the Company employs its own trade secrets and proprietary technology and other intellectual property of Company (“Company Intellectual Property”). Company owns all rights in Company Intellectual Property. Company grants Client a worldwide, nonexclusive license to use any playbooks or templates delivered to Client which may contain some Company Intellectual Property, provided that Client has paid all fees due pursuant this Agreement. Other than the rights granted to Client pursuant to the limited license set forth herein, nothing contained in this Agreement shall transfer any right, title or interest in or to any of Company Intellectual Property or Proprietary and Confidential Information of Company to Client. Any other intellectual property developed by Company in connection with providing the Services, which does not involve Company Intellectual Property or Proprietary and Confidential Information of Company, 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) (“Client Work Product”). To the extent that the foregoing Client Work Product contain copyrightable subject matter, the copyright ownership and all right, title and interest therein of any and all copyrightable works created by Company during the performance of the Services under this Agreement, which are not Company Intellectual Property, shall vest in Client as a “work made for hire” as deemed specially ordered by Client under the U S Copyright law.
In the event that the Client Work Product is determined not to be a “work made for hire”, this Agreement shall operate as an irrevocable assignment by Company to Client of the copyright in the Client Work Product, including all right, title and interest therein. 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, products, computer software, software documentation and all other intellectual property and proprietary rights. The Parties hereby covenant and agree that they shall treat and protect all intellectual property of the other Party as Proprietary and 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 of the other Party. 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 may, in its sole discretion, provide Company with usernames and passwords which shall enable Company to access the Client Accounts. 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, passwords or other personal data provided by Client.
7. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
ALL SERVICES PROVIDED BY COMPANY PURSUANT TO THIS AGREEMENT ARE PROVIDED BY COMPANY ON AN “AS IS,” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS RESPECTIVE AFFILIATES AND SUBSIDIARIES MAKE NO REPRESENTATION ABOUT THE SUITABILITY OF THE SERVICES FOR ANY PURPOSE. THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES WILL EXCEED THE LESSER OF: (A) FIVE HUNDRED THOUSAND DOLLARS ($500,000.00), OR (B) THE AMOUNT PAID BY CLIENT HEREUNDER IN THE 3 MONTHS PRECEDING A CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER SECTION 3 (FEES AND PAYMENTS FOR SERVICES) AND SHALL SURVIVE 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.
9. CLIENT HIRING OF EXPERTS
The Parties acknowledge and agree that Company has trained its experts on its proprietary methods and given its experts substantial amounts of Company’s Proprietary and Confidential Information, for the benefit of Client. The Parties further agree that this Agreement imposes no restrictions on either Party’s right to hire any current employee or contractor or former employee or contractor of the other Party. For the reasons above, if Client hires, as its own employee or contractor, any expert of Company who is assigned to Client at the time of the hiring, or was assigned to Client at any time during the twelve (12) months prior to the hiring, the Parties agree as follows: (a) Company agrees to give the expert a limited right to use Company’s proprietary methods, and certain Proprietary and Confidential Information that is approved in writing by Company in its sole discretion, for the benefit of Client for up to one (1) year, and (b) Client agrees to pay Company twenty percent (20%) of the compensation to be paid to the expert during the six (6) months following the hiring by Client, which amount shall be paid in a lump sum to Company within thirty (30) days of the hiring by Client.
10. 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 written 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 before one (1) arbitrator mutually agreed upon by the Parties. Arbitration shall be administered pursuant to the (Comprehensive Arbitration Rules and Procedures) (Streamlined Arbitration Rules and Procedures) of the Judicial Arbitration and Mediation Services, Inc. and California law. Either Party may bring an action in any court having jurisdiction to compel arbitration under this Agreement, to enforce an arbitration award or to obtain temporary injunctive relief pending a judgment based on the arbitration award. Otherwise, neither Party shall initiate or prosecute any lawsuit or administrative action in any way related to any claim within the scope of this agreement to arbitrate. The arbitration shall be held in Redwood City, 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 arbitration.
11. USE LOGO AND MATERIALS FOR PROMOTIONAL PURPOSES.
Provided that Client’s Proprietary and Confidential Information is not disclosed, Client authorizes and grants Company the right to use Client’s name, logo and/or trademark solely for Company’s promotional and advertising purposes and in Company’s promotional materials disseminated 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 promotional materials may be developed, disseminated and used without Client’s review. Notwithstanding the foregoing, nothing in this Agreement requires or obligates Company to use a Client’s name, logo and/or trademark, in any promotional materials or advertising of the Company.
12. MISCELLANEOUS
A. Integration. 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, heirs, distributees and personal representatives.
C. Captions. 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, duly signed by both 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.
F. Indemnification. Each Party shall indemnify, hold harmless and defend the other and its affiliates and their respective officers, directors, managers, members, shareholders, employees and agents against any and all claims, demands, liabilities, losses, costs, expenses and deficiencies (including interest, penalties, reasonable attorneys’ fees and expenses) (such claims, demands, liabilities, losses, costs, expenses and deficiencies are collectively the “Losses”) arising out of or in connection with or based upon (a) the inaccuracy of any representation or warranty made by such Party; (b) the breach by such Party of any covenant or obligation under this Agreement; or (c) personal injury or death to persons and damage to property arising out of or in connection with or resulting from the Services under this Agreement to the extent that such injuries, deaths or damage are caused by such Party’s agents or subcontractors or by anyone directly or indirectly employed by such Party or by them.
G. Severability. 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.
H. Notices. Any notice required to be given under this Agreement shall be in writing and sent by a nationally recognized overnight delivery overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. Notices to Company shall be addressed to the attention of Courtney Kehl, Expert Marketing Advisors, 1113 Clinton St, Redwood City, CA 94061. Notices to Client shall be to its signatory at the address of Client which appears under its signature to this Agreement.
I. This Agreement shall be governed and construed in accordance with the laws of California, excluding that state’s choice-of-law principles, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of California, excluding that state’s choice-of-law principles.
J. Assignment. Neither this Agreement nor any of the rights or obligations created herein may be assigned by either Party, in whole or in part, without the prior written consent of the other Party, not to be unreasonably withheld or delayed; except that either Party shall be free to assign this Agreement, without the prior consent of the non-assigning Party, (i) to an affiliate of such Party provided that such Party shall remain liable and responsible to the other Party for the performance and observance of all such duties and obligations by such affiliate, or (ii) in connection with any merger, consolidation or sale of such Party or sale of all or substantially all of the assets of the Party that relate to this Agreement.
K. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
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