The Company, in rendering performance under this Agreement, shall be deemed an independent contractor, and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. By entering this Agreement, neither Party agrees to perform or undertake any obligation of the other Party, whether by regulation or contract. In no way is the Company to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding
This Agreement constitutes the entire understanding among the Parties with respect to the subject matter hereof, superseding all negotiations, prior discussions and prior agreements and understandings relating to such subject matter.
Any notice required to be given under this Agreement shall be in writing and delivered to the Party at the address provided above, either personally or by Federal Express, UPS, or other courier services with proof of delivery provided. Attempted delivery, which is refused shall be a valid notice under this Agreement. Either Party may change its address by at any time, but such change must be in writing and delivered in accordance with the provisions of this paragraph.
The Company agrees to provide the Customer with the Marketing Services described in Exhibit A, attached hereto. A request for additional services verbally shall be documented in writing within five (5) days of the request and before the purchase of any third-party services. The written request shall supersede all verbal requests. Both Parties must agree to the requested additional services in writing before commencing the work.
The Company agrees to provide the Customer the availability to utilize additional services on an as-needed basis for marketing or additional content development. Additional Services are priced and described in this Agreement and Exhibit B.
The Company is not responsible for third-party plugins that may become unusable or incompatible as a result of maintenance services performed by either the third-party plugin or website host.
The Company is not responsible for changes made to the Customer’s website(s) or any other systems by other parties.
The Company has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future. Customer’s web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.
For all work performed hereunder, the Customer shall pay the Company rates as agreed per the Master Rate Schedule outlined in Exhibit B. Customer agrees to pay the Company any and all fee(s) as billed by this Agreement. There shall be no refunds. The stated upfront fee(s) must be received before the start of any Services.
The Customer further agrees that, in the event of any termination of this Agreement by the Customer, no refunds shall be given under any circumstances whatsoever. The Customer further agrees to pay upon cancellation the amount of any cancellation fee(s) or other amounts due to the Company as provided in the Agreement.
For monthly services that don’t commence on the first (1st) of the month, the cost of the monthly services will be prorated from the first month to when the services are started. There is no proration of onetime payment services.
The Company shall bill the Customer at the address shown above on the first (1st) of the month for all work to be performed in the month. Payments shall be made to the Company at the address specified on the invoice within thirty (30) days of the invoice date. If payment is not received within the thirty (30) days, a 20% late fee will be applied to all outstanding charges. After sixty (60) days late all, subscription services will be canceled, and the Customer will be responsible for paying any new activation or setup fees charged by the third-party service. Beyond ninety (90) days late, the account will be closed, and all outstanding charges sent to collections, all collection fees are the responsibility of the Customer.
The Company is hereby authorized to charge the Customer’s credit card account or other payment mechanisms for any amounts owed from time to time by the Customer to the Company. The Customer has the option to set up reoccurring payments with the Company.
The Company shall promptly pay all bills and other indebtedness for third-party services provided or arising from this Agreement. The Company shall maintain detailed books and records relating thereto. Provided the Customer pays the Company’s invoices in a timely manner.
This Agreement shall be effective for one (1) year after the Effective Date. After the one-year period, the Agreement shall continue in full force and effect, but either Party may terminate the Agreement at any time, without cause, by delivering thirty (30) days notice to the other Party.
This Agreement may be terminated by either Party upon written notice to the other if the other Party breaches any material obligation provided hereunder, and the breaching Party fails to cure such breach within thirty (30) days of receipt of the notice.
This Agreement may be terminated by the Company:
The Agreement may be terminated by the Customer at any time without penalty:
The Agreement may not be terminated within four (4) months of the Effective Date by the Customer. The Agreement may be terminated by the Customer at any time after the four (4) months from the Effective Date with a penalty fee of 125% of the monthly reoccurring charges.
For the purposes of providing these services, Customer agrees and represents:
The Company will perform all work in a professional manner and will make a reasonable effort to meet the Customer’s needs. Any and all defects found in Services provided by the Company within thirty (30) days of completion will be remedied at no cost to the Customer, provided the defects are a fault of the Company.
The Company does not warrant that the services will meet the Customer’s expectations or requirements unless outlined in writing and clearly stated. The Company makes no warranty as to the success of the Services provided to the Customer. Except as otherwise specified in this Agreement, The Company provides its services “as is” and without warranty of any kind.
The Company makes no warranty of any kind, whether express or implied, with regard to any third-party products, third-party content, or any software, equipment, or hardware obtained from third-parties.
The Parties agree that:
The Company will utilize a backup system to attempt to maintain the integrity of the information stored on behalf of the Customer. However, incremental backups of data are performed; the recovery of data is not guaranteed. The version of the information recovered from a backup may not be the current version of the data. Any time the Company must spend to restore the data to its original state is the responsibility of the Customer.
Loss of the Customers data due to the Company’s error will be restored to the original state at the cost of the Company.
The Company provides no warranty the integrity or resiliency of backups performed by purchased third-party services.
Title to Services provided by the Company and incorporated or intended to be incorporated into the Services shall be transferred to the Customer immediately upon payment.
The Company will retain full ownership of all knowledge, skills, procedures, internal work product, etc. gained in the pursuit of providing the Customer with the requested services.
For Company developed content, the Company:
For Customer provided content the Company:
The Customer makes the following representations and warranties for the benefit of the Company:
The Parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information.
Proprietary or Confidential Information shall not include any information which:
The Parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third-party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each Party’s proprietary or confidential information shall remain the sole and exclusive property of that Party. The Parties agree that in the event of use or disclosure by the other Party other than as specifically provided for in this Agreement, the non-disclosing Party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, the Parties acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the termination date of service.
The Customer agrees that any information that is provided for marketing purposes on behalf of the Customer’s Clients (“Clients”) has been cleaned of all non-publicly available information. The Company is not responsible for the receipt of the Clients' non-publicly available information; however, the Company will securely delete this information immediately.
Unacceptable personal identifying information is the following:
Acceptable personal identifying information is the following, provided the Client has consented to the information being used for marketing purposes:
During the term of this Agreement and for ninety (90) days after the termination of this Agreement, the Parties agree not to intentionally or directly solicit either Party’s customers, clients, or employees with the intention of enticing the other Party’s customers, clients, or employees away from the Party with a prior established relationship. Any violation of this paragraph may be enforced both equitably and at law.
The Parties agree that each Party’s Proprietary or Confidential Information or Personal Identifying Information may be disclosed to its employees, agents, consultants, and/or contractors, on a need-to-know basis; provided the employee, agent, consultant, and/or contractor shall also be subject to the terms and conditions of this Agreement.
The Parties agree to destroy all Proprietary or Confidential Information or Personal Identifying Information of the requesting Party, providing the request is submitted by an authorized representative in writing, which includes all copies, backups, and any other form of the information, except for any information required to be kept for legal purposes. Information kept for legal purposes will be stored in an encrypted location accessible only by individuals requiring access to the information.
In the event either Party’s information is sought through a subpoena or other court process, the recipient shall inform the other Party of the request in a timely manner to permit the Party owning the Proprietary or Confidential Information or Personal Identifying Information to object and, if necessary, seek court intervention to prevent disclosure.
Customer shall indemnify and hold harmless the Company (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by the Company as a result of any claim, judgment, or adjudication against the Company related to or arising from:
From time to time, governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The Customer agrees that the Customer is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend the Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Customer’s exercise of Internet electronic commerce.
In no event shall the Company be liable to the Customer for any indirect, special, exemplary or consequential damages, including any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from course of dealing or course of performance, lost profits, whether or not foreseeable or alleged to be based on breach of warranty, contract, negligence or strict liability, arising under this Agreement, loss of data, or any performance under this Agreement.
Neither Party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
Customer may not assign this Agreement or the rights and obligations hereunder to any third‑party without the prior express written approval of the Company. The Company reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors, and assigns.
No changes or alterations shall be made to the Services unless they are in writing and signed by properly authorized representatives of both the Company and the Customer.
No benefit or right accruing to either Party under this Agreement shall be waived unless the waiver is in writing and signed by both Parties to this Agreement. The failure of either Party to exercise any of its rights under this Agreement shall in no way constitute a waiver of those rights, nor shall such failure excuse the other Party from any of its obligations under this Agreement.
The Company shall maintain a true and correct set of records pertaining to the Services performed or third-party services provided hereunder and all transactions related thereto. The Company agrees to retain all such records for a period of not less than two (2) years from the completion of the Services or third-party services provided. Any representative of the Customer may request to audit at any time within the two (2) years any and all records pertaining to the Services performed or third-party services provided for the Customer to ensure compliance with this Agreement. The Customer shall pay all costs of the audit. If an audit is requested within the two (2) years, the Company shall maintain the records for as long as reasonably required to complete the audit. The Customer is not entitled to review the Companies cost structures, calculations for employees pay, prices charged, or amounts paid to its vendors, profit margins, trade or professional information, drawings, designs, any documents subject to attorney-client or similar privilege, or any other confidential or proprietary information.
The Customer and the Company agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the Parties fail to resolve any such disagreement within thirty (30) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either Party to arbitration in Elbert County, Colorado and in accordance with the Commercial Arbitration Rules of the American Arbitration Association.
Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
This Agreement will be governed by and construed in accordance with the laws of the State of Colorado.
Each Party acknowledges that it has read and understood this Agreement and agrees to be bound by its terms and conditions.