1. SCOPE OF AGREEMENT
A. Client hereby engages and retains Company and Company agrees to provide Client with Marketing services according to the terms listed on the Scope of Work, which is incorporated in MSA as though fully set forth, (the “Services”). Additional Scopes of Work may be agreed by the parties and executed by written instrument signed by both parties, at which time such additional Scopes of Work shall be 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 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.
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.
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 marketing strategies and other factors are beyond Company’s control, and Company cannot guarantee any specific increase in search engine rankings, traffic or sales.
notwithstanding anything in Section 2, Client may terminate this agreement upon thirty (30) days notice.
ix) Delivery & Expiration Period: If there are a specific number of hours included in the consulting services purchased, those hours will expire as indicated below, which expiration period will commence upon purchase (the “expiration period”).
If there are deliverables included in the consulting services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period below, which delivery period will commence upon purchase (the “delivery period”). If the consulting services provided are not complete at the end of the delivery period due to your failure to make the necessary resources available to us or to perform your obligations, such consulting services will be deemed to be complete at the end of the delivery period. If the consulting services provided are not complete at the end of the delivery period due to our failure to make the necessary resources available to you or to perform our obligations, the delivery period will be extended to allow us to complete such consulting services.
Custom Consulting Services will be as described in the applicable order form or statement of work.
Delivery period and/or expiration period will be as stated in the applicable order form or statement of work.
2. TERM AND TERMINATION.The term of this Agreement (the “Term”) shall commence on forth in Exhibit A (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 fees for Services delivered to Client pursuant to Company’s performance of its obligations hereunder prior to the date of termination hereof and will
the Effective Date and, unless otherwise agreed in writing by both parties, expire twelve (12) months following the Effective Date, unless otherwise terminated as provided herein. The Subscription Term will automatically renew for the period indicated above unless otherwise notified by the client. Client must inform their intent to cancel the renewal prior to thirty days of when the initial contract expires as required in the Customer Terms of Service.
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 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 in Exhibit A (or pursuant to any active Statement of Work fully executed by the parties).
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 monthly for the amounts set forth in agreement
promptly pay all unpaid fees due through the end of the subscription term. eMa will not provide any refunds for prior services. In addition eMa cannot provide refunds for any subscriptions to third party programs (HubSpot, Pardot, Marketo, etc).
C. Client’s obligation to pay all unpaid invoices for Services previously delivered (and any applicable 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 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 $25 service charge.
E. All payments made by international wire transfer shall be assessed a ($35) 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 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 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 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, 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 worldwide, nonexclusive license to use Company Intellectual Property perpetually in connection with Client’s website, provided that Client has paid all fees due pursuant 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. Any other intellectual property developed by Company, which does not involve Company Intellectual Property, 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). To the extent that the foregoing comprise copyrightable subject matter, copyright ownership and all right, title and interest therein of any and all copyrightable works created by Company during the performance of this Agreement 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 work is determined not to be a “work made for hire”, this Agreement shall operate as an irrevocable assignment by the Company to Client of the copyright in the work, 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 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 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. 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 EITHER PARTY BE LIABLE FOR ANY 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.
BOTH PARTIES 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. 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.
9. CLIENT HIRING OF EXPERTS. The parties acknowledge and agree that Company has trained its experts on its proprietary methods,
given its experts substantial amounts of Company’s Proprietary and Confidential Information, and trained its experts on the use of the proprietary methods and the 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, Company agrees to give the expert a limited right to use Company’s proprietary methods and certain Proprietary and Confidential Information that is approved by Company in its sole discretion for the benefit of Client for up to two years, and Client agrees to pay Company twenty percent of the compensation to be paid to the expert during the six months following the hiring, which shall be paid in a lump sum within thirty days of the hiring.
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. 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.
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.
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, and neither party may assign any of their obligations under this Agreement without the prior written consent of the other party.
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.
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