TERMS OF SERVICE AGREEMENT
- Consultant will provide consulting services to the Customer relating to the creation or modification of the Customer’s website. The services to be provided by Consultant are those set forth in the Schedule, or otherwise described and included in the Agreement (“the Services”). Subject to any lawful restraint imposed upon it by any other party (such as an obligation as to confidence), Consultant will make available to the Customer all knowledge, information and expertise in its possession necessary to the performance of the Services. If the Customer wishes Consultant to perform any services other than the Services (including without limitation to provide any additional functionality) or to provide other products or software, then Consultant shall be entitled to quote the Customer separately for such services, products or software. If the Customer accepts that quotation then the parties may amend the Schedule and this Agreement to include the provision of those additional services, products or software.
- Unless otherwise agreed in writing by the parties, the term of this Agreement will commence on the date specified in the Schedule.
- The Customer shall nominate an employee in writing as the “Customer Contact” who shall be available to meet with Consultant when reasonably required by Consultant for the purposes of discussing the status of the Services. Consultant will communicate regularly with the Customer Contact and report to the Customer on the status of the Services.
- Consultant will provide Services to the Customer and will be entitled to charge the Customer for such Services at the rates specified in the Schedule.
- The Customer will reimburse Consultant for all expenses incurred by Consultant on the Customer’s behalf or in carrying out its obligations under this Agreement.
- If the Customers credit card is declined in attempt of making a monthly payment, the Customer understands all work on Customer’s website will cease until payment is received.
- Consultant will not disclose to any third party, or use other than for the purposes of this Agreement any knowledge or information imparted to or obtained by it during or in connection with the fulfillment of this Agreement which is of a secret or confidential nature relating to the business, equipment, processes, products, services, or business strategies offered or employed by the Customer. This obligation of confidence will cease to apply in relation to information that Consultant is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by Consultant of its obligations of confidence under this Agreement.
- The Customer must not de-compile, disassemble, decrypt, extract or otherwise reverse engineer any part of any service that is provided to the Customer by Consultant without written consent from Consultant.
- The Customer must hold any reports (in source and/or in object code) and other materials provided to the Customer by Consultant confidential. The Customer must not disclose any of those materials to any third party without Consultant’s prior written consent. The Customer must also take all reasonable steps within its power to protect the Intellectual Property of Consultant.
- Except for express undertakings to indemnify and any warranties set out in this Agreement:
- Certain provisions relating to the trading of goods and services and other statutes, rules and regulations in the United States, may imply certain non-excludable warranties or conditions. To the extent that they are not permitted to be excluded, Consultant’s liability for breach of such conditions or warranties and the
a) To the extent permitted by the law, Consultant expressly excludes all conditions and warranties whether express or implied.
b) Notwithstanding any other provision in this Agreement, in no event will Consultant be liable to any party, including the Customer, for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement (including for loss of profits, use, data, or other economic advantage), however it arises, whether for breach of this Agreement or in tort, and even if Consultant has been previously advised of the possibility of such damage. Further, liability for such damages shall be excluded, even if inclusive remedies provided hereunder fail their essential purpose. The Customer will indemnify Consultant from any claims by any third party for such damages.
a) in the case of products or software or other goods supplied by Consultant, at Consultant’s option:
i) the replacement or repair of those products or software or goods, or the supply of equivalent goods; or
ii) the payment of the cost of replacing or repairing the products or software or goods or of acquiring equivalent goods; and/or
b) in the case of Services, at Consultant’s option:
i) supplying the Services again; or
ii) the payment of the cost of having the Services supplied again.
- The Customer undertakes to Consultant that it will not for a period of two years from the termination of this Agreement entice away or endeavor to entice away from Consultant any employee of Consultant. The Customer acknowledges that the prohibition and restriction contained in this clause are reasonable in the circumstances and necessary to protect the business of Consultant.
- The Customer acknowledges that Consultant is providing Services to the Customer on a non-exclusive basis and that Consultant may provide services of the same or a similar nature as the Services to any other party.
- On termination of this Agreement however occurring, unless canceled by Consultant pursuant to paragraph 14 (b) or by Customer pursuant to paragraph 14(a or c) all moneys (monthly payments) remaining until the contract end date unpaid by the Customer pursuant to this Agreement will immediately become due and payable. If such moneys remain unpaid for a period of thirty days then (without prejudice to any other rights that Consultant may have for breach of this Agreement or otherwise) Consultant will be entitled to retake possession of the products and to disable any software provided pursuant to this Agreement (including by remote means).
This Agreement may be terminated in the following circumstances:
a) Immediately by Customer by notice in writing for any reason after thirty (30) days of receipt of a notice to Consultant at the end of the lifetime of grant; or
b) Immediately by Consultant by notice in writing if the Customer fails to remedy a breach of this Agreement (including any provision as to payment) within fifteen (15) days of receipt of a notice from Consultant of such breach requiring it to do so; or
c) By either party immediately by notice in writing (“the Notice”) if the other party takes any corporate action or other steps are taken or legal proceedings are started (and are not withdrawn, discontinued or struck out within twenty-one days) for its winding up, liquidation or dissolution (other than for the purposes of reconstruction) or the appointment of an administrator, receiver, receiver and manager, official manager, liquidator, provisional liquidator, trustee or similar office of it or of any or all of its revenues and assets (“Insolvency Event”), and such Insolvency Event remains in existence in respect of such party as the time of service of the Notice.
- Any notice required or contemplated by this Agreement shall be deemed to have been duly given if it is in writing, properly addressed and delivered personally or mailed by registered or certified mail, postage prepaid addressed or by fax or electronic mail to the Customer or Consultant at the address set out in the Schedule or this Agreement or such other address nominated by a party in writing.
- The Customer may not assign any of its obligations under this Agreement without the prior written consent of Consultant. Such consent shall not be unreasonably withheld. However Consultant may arrange for subcontractors to perform any of Consultant’s obligations under this Agreement.
- A failure, delay, relaxation or indulgence by either Party in exercising any right, power or privilege conferred on the Party by this Agreement shall not operate as a waiver of the power or right. A single or partial exercise of any right, power or privilege hereunder does not preclude the further exercise of the same right or the exercise of any other right hereunder. A waiver of a breach does not operate as a waiver of any other breach.
- If any part of this Agreement is held by a court of competent jurisdiction to be invalid, then;
a) where the offending provision can be read so as to give it a valid and enforceable operation of a partial nature it must be construed to the extent necessary to achieve that result; and
b) any unenforceable provision must be severed from the Agreement so that the remainder of the Agreement shall continue in full force and effect ,
- This Agreement shall be governed by and must be construed in accordance with the laws of the State of Texas, in the United States, and the Customer submits to the non-exclusive jurisdiction of the courts of that State.
- Management fees do not include click charges that are paid directly to the search engines by the Customer via credit card (this is the campaign spend). Consultant management fee will be automatically charged by credit card every 30 days for the lifetime of grant. Texas customers agree to pay an additional sales tax of 8.25% as required by law for all services.
- By signing this contract Customer also agrees that all ads, campaigns, and PPC accounts created by the Consultant are copyright protected properties of the Consultant. The Customer has the right to use said ads, PPC campaigns and PPC accounts, as long as the Agreement is in place and/or payments are in current standing. The Customer understands fully that should there be a breach or expiration of the Agreement, the Customer cannot use said ads, PPC campaigns or PPC accounts without the express written consent of the Consultant. The Customer understands that if there should be a breach of the Agreement, all said ads, PPC campaigns or PPC accounts will be removed, revoking all changes and restoring Customer’s PPC campaigns to the original condition as found by the Consultant on or before the date of the Agreement.
Also, Customer understands any attempts to move PPC campaigns or PPC accounts from the Consultant’s account will result in the revocation of all work done on Customer’s campaign by the Consultant and Customer’s campaign will be restored to the original condition as found by the Company before the date of this Agreement.
In the event that ads, PPC campaigns or PPC accounts are overwritten or removed either on purpose or by accident by the Customer and/or Customer’s agent, the Customer may be charged an additional set-up or modification fee if the Consultant must restore the work onto the search engine system, such as ads, PPC campaigns or PPC accounts.
- Upon signing the Agreement, Customer indicates that Customer has read and understands all aspects of the services provided pursuant to the Agreement and the Schedule. Consultant will not refund any deposits or payments once work has begun on Customer’s PPC campaign as agreed in the Agreement. The Agreement is legally binding upon Customer’s signing of it and remains in effect from the origination date until 30 days written cancellation notice is received by the Consultant from the Customer after the lifetime of grant expires.