TERMS OF SERVICE AGREEMENT
- Consultant will provide consulting services to the Customer for the purposes of increasing Internet exposure driving targeted online traffic to Customer’s website. In performing the Services (defined below), the Consultant will, where permitted, install its proprietary software product upEngine™ to automate and expedite the optimization process. The Customer agrees to protect the Consultant’s proprietary rights in upEngine™ as confidential information in accordance with Paragraph 6 below and will strictly restrict access to upEngine™ to prevent the unlawful downloading of files. For purposes of receiving Consultant’s optimization services, the Customer will provide administrative/back-end access to its website for analysis of content and structure. The Customer hereby grants permission for the Consultant to make changes for the purpose of optimization, and to communicate directly with any third parties if necessary. Whether manually or as automated by use of upEngine™, Consultant will modify Customer’s website to clean up and optimize code on only the Customer’s specified home page, blog and SEO landing pages. The services, products, and software to be provided by Consultant are those set forth in the Marketing 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. Any additional services, products, and software that Customer desires other than described in the Schedule (including without limitation any additional functionality) will be quoted by Consultant to the Customer separately. If the Customer accepts a quotation for additional service, products, or software, the parties will amend the Schedule and this Agreement in writing to include the provision of the additional services, products or software.
- Unless otherwise agreed in writing by the parties, the term of this Agreement will commence on the Effective Date.
- The Customer shall designate 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 to 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 Marketing Schedule.
- Initial payment is due on the Effective Date. All subsequent invoices issued by Consultant are due and payable by the first day of the applicable billing cycle (the “Due Date”). If the Effective Date of this Agreement is prior to the 15th day of any month, then the Due Date will be the 1st day of each month. If the Effective Date of this Agreement is on or after the 15th day of any month, then the Due Date will be the 15th day of each month. If payment is not made by the Due Date, the amount owed will increase by an additional 4% if paid by the 15th day of the billing cycle, and by an additional 4% if paid after the 15th day of the billing cycle Never to exceed 8%. If the Customer fails to pay Consultant in full in accordance with these terms, all deliverables set forth in the Schedule will be suspended until payment is received.
- Neither party will 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, software, services, or business strategies offered or employed by the other, including Consultant’s upEngine™ product. This obligation of confidence will cease to apply in relation to information that a party is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach of the obligations of confidence under this Agreement. Each party will retain all right, title, and interest to such party’s confidential or proprietary information. No license to any intellectual property is either granted or implied by the conveying of confidential or proprietary information.
a) To the extent permitted by the law, CONSULTANT EXPRESSLY DISCLAIMS ALL WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CONSULTANT MAKES NO OTHER WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES, SOFTWARE OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE. NO AGENT OR EMPLOYEE OF CONSULTANT IS AUTHORIZED TO MODIFY THESE PROVISIONS REGARDING WARRANTIES.
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 DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM EQUIPMENT OR PROCESSING DOWNTIME, OR LOSS OF SEARCH ENGINE RANKING, WEB TRAFFIC, PROFITS, BUSINESS, USE, DATA, OR ANY OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH OF THIS AGREEMENT OR IN TORT, WHETHER OR NOT FORESEEABLE AND EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. FURTHER, THIS LIMITATION ON DAMAGES IS AGREED AND INTENDED BY THE PARTIES TO SURVIVE EVEN IF INCLUSIVE REMEDIES PROVIDED HEREUNDER FAIL THEIR ESSENTIAL PURPOSE. THE CUSTOMER WILL INDEMNIFY AND HOLD HARMLESS CONSULTANT FROM AND AGAINST ANY CLAIMS BY ANY THIRD PARTY FOR SUCH DAMAGES.
- The Customer will provide Consultant with all reasonable assistance and facilities free of charge (including without limitation of the Means of Access and the other Items referred to in the Schedule, office facilities, and liaison with the necessary officers and employees of the Customer) in order to permit Consultant to efficiently provide the Services.
- The Customer is solely responsible for the proper backup and protection of all of its software and data, as well as the implementation and maintenance of firewalls and security measures (including proper virus control) in relation to the facilities. Consultant is not responsible for any hacking, cracking, viruses, worms, Trojan horses or other malicious code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware caused by third-parties. Any assistance requested of Consultant to address any such malicious attack will be additional services provided at Consultant’s then current hourly rate.
- The Customer agrees that it will not for a period of two years from the effective date of 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.
- This Agreement may be terminated in the following circumstances:
a) By Customer for any reason upon 30 days’ notice in writing given at any time after expiration of the terms (number of months stated in the Marketing Agreement);
b) 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; and
c) By either party immediately upon giving 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 (21) 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 at the time of service of the Notice.
- On termination of this Agreement however occurring, all sums due under the Agreement immediately become due and payable by bank card, certified check, or cashier’s check, including monthly payments due for any months remaining of the initial minimum contract term. In addition, in conformance with Paragraph 19 but subject to the exception provided therein, as applicable, Customer must immediately cease to use all software and products, including upEngine™, provided by Consultant. Consultant will be entitled to retake possession of all products and to disable any software provided pursuant to this Agreement (including by remote means). Because of the unique nature of the Services, software and products provided under this Agreement, including upEngine™, Customer acknowledges and agrees that the Consultant will suffer irreparable injury if the Customer fails or refuses to allow the Consultant to remove Consultant’s proprietary materials, products, and software, and that monetary damages may be inadequate to compensate the Consultant for Customer’s breach. Accordingly, the Customer agrees that Consultant will be entitled to injunctive relief, without posting a bond, to enforce the terms of this Agreement including the immediate de-installation and return of Consultant’s proprietary materials, products, and software, including upEngine™,in addition to any other remedies that may be available to it at law or in equity,
- Consultant reserves the right to terminate or deny any service for any reason, including without limitation for failure to pay for Services as agreed upon herein, and with respect to websites in a domain dispute, websites involved in illegal activities, and websites content, files, graphics, or images which may be considered offensive, improper, or obscene, such as relating to pornography, racism, religion, politics, violence, crime, or terrorism.
- 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 or transmitted 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.
- This Agreement shall be governed by and must be construed in accordance with the laws of the State of Texas without regard to its conflicts of laws principles, in the United States, and the Customer submits to the non-exclusive jurisdiction of the courts of that State.
- For clarity, Customer understands that this is a pre-payment structure and acknowledges that failure to pay by the applicable Due Date (as defined in Paragraph 5) will suspend all deliverables set forth in the Schedule. Consultant will not refund any deposit or payment once work has begun on Customer’s website as agreed in the Agreement. The Agreement is legally binding upon Customer’s signing of it and remains in effect until terminated as provided herein.
a) By signing this Agreement, Customer agrees to pay the SEO Marketing Fee each per month (plus any applicable taxes) for a minimum mandatory term defined in the Marketing Agreement from the Effective Date of on-site/off-site marketing services in accordance with the Schedule. Customer understands and acknowledges that a period of up to 6 weeks may be necessary for initial set up and code cleanup. Off-site marketing deliverables identified in the Schedule will commence 30 days after the Effective Date unless otherwise provided in the Schedule.
b) Prior to the service month, Company will issue a monthly invoice for the Marketing Fee plus, as applicable, the fees due in accordance with the Schedule for monthly lead conversion tracking. Invoiced amounts must be paid on or before the first day of the service month in accordance with Section 5 of this Agreement. Customer understands and acknowledges that the Marketing Fee will automatically be charged every 30 days until completion of the initial mandatory term. At the end of the mandatory term, the on-site/off-site marketing campaign provided for under this Agreement will automatically convert to a month to month contract term which Customer may cancel for any reason on 30 days written notice. Texas customers will be charged and are obligated to pay sales tax of 8.25% on all Services as required by law.
- By signing this contract Customer also acknowledges and agrees that all coding, content and articles created by the Consultant are copyright protected properties of the Consultant. The Customer has the right to use said coding, content, and articles only so long as the Agreement is in place and payments for Services are in current standing. Upon expiration or termination of the Agreement,
(a) Consultant will cease all further delivery of Services, products, software, and content,
(b) Customer will immediately cease to use products, software, and content and will provide prompt access to Consultant as needed to permit Consultant to uninstall or delete Consultant’s software, products, or other proprietary information residing on Customer’s servers, including upEngine™,
(c) Customer’s landing pages generated by the Services provided under this Agreement will cease, and
(d) all rights and licenses of Customer under this Agreement will terminate. If Customer has given proper notice of termination, the mandatory minimum term has expired, and Customer has paid in full all sums due under this Agreement then the Customer will retain ownership of any written copy such as blogs, press releases, and articles provided during the term of this Agreement.
- Consultant is not responsible for Customer overwriting optimization work to the Customer’s website. In the event that coding, content, or articles are overwritten or removed intentionally or by accident by the Customer or its agents, an additional fee for reconstruction of the work based on the Consultant’s then-current hourly rate may be charged if the Consultant must restore the work onto the website, including coding, content, and/or articles.
- Customer acknowledges that Consultant has no control over the policies and practices of search engines, and that keyword competitiveness, ongoing changes in search engine ranking algorithms, and other competitive factors can hinder acceptance and ranking of sites. In order to maintain the flexibility to address search engine changes, upon 15 days advanced notice to the Customer, the Consultant may modify any and all campaign deliverables set forth in the Schedule.
- This Agreement may be assigned, delegated, or otherwise transferred by Consultant without the prior consent of the Customer. The Consultant may, without the prior consent of the Customer, assign any or all of its rights under this Agreement to
(i) a parent, subsidiary, affiliate, or associate of Consultant, or
(ii) a purchaser of all or substantially all assets of Consultant. This Agreement shall bind and insure to the benefit of Consultant and Customer and their respective successors and permitted assignees.