1. Service Description: Provider agrees to create, manage, modify and report on digital marketing campaigns for the Customer based on the services described in this agreement. Description of Individual Services: Reporting; Provider will provide email and online reporting options for the Customer to view performance metrics for digital marketing campaigns. Additional services may be described in Section 3 of this Agreement.
2. Fees: Provider will charge an account management fee(s) to perform the services. Account management fees are on a monthly basis, starting on the first day of each month and ending on the last. Account management fees may not be prorated for services that are not used for the entirety of the month. In addition to account management fees, the Provider may charge a technology fee to initiate services. Technology fees are non-refundable upon the initiation of the campaign creation.
3. Term of Agreement: The agreement shall extend for the term stated on the face of this agreement, unless prior written notice of cancellation is given by either party at least (10) days prior to the end of the original or any renewal term of the agreement. The agreement will automatically renew for an additional term of equal length tot he term listed on the face of the agreement.
4. Cancellation/Termination: The agreement may not be cancelled within the term of the agreement except in the case of a breach in the agreement. In the event of a breach of the agreement, either party will be given thirty (30) days to rectify the breach of the agreement. During the breech of the agreement, digital marketing services may be paused until the breech of the agreement is rectified or the breech of the agreement results in a termination of the agreement. Cancellations of renewals must be made in writing delivered to the address or email address listed on the face of the agreement.
5. Security/Credit: Post-pay accounts and credit accounts are provided based on the Provider's discretion. Customer may be required to submit a credit application to obtain a post-pay or credit account. Secured accounts require an upfront payment equal to one (1) month's account management fee and contracted media spend.
6. Payments: All payments are advanced billed 30 days prior to upcoming months service. Customers on post-pay or credit accounts who exceed a 30 day balance may be moved to a secured account requiring an upfront payment equal to one (1) month's account management fee and contracted media spend. In the event Customer fails to make any payments in a timely manner, the Provider has the right, but is not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement, (2) remove equipment, software, services or resources owned by the Provider, whether leased to Customer by Provider or not, or (3) bring legal action. Late payments will be charged a late fee equal to 1.5% of the monthly statement balance. All past due amounts shall bear interest at the highest rate allowable by law.
7. Advertising Budgets: Advertising Budget (amount of contract designated for digital media purchase) may be adjusted during the term of this agreement. Any modification to the Advertising Budget must be made in writing to acknowledged by the designated account manager. Advertising Budge modifications must be made with three (3) business days notice. Unless notice is otherwise given according to the terms of the agreement, the Advertising Budge listed on this agreement or as modified in writing will automatically be designated as the Advertising Budge for subsequent months during the term of the agreement.
8. Media Costs: Media costs for digital marketing will be billed at net with the exception of instances where the Provider obligates itself to obtain favorable rates of service. In instances where the Provider obligates itself for favorable rates of services, media may be resold to the customer with an additional markup to mitigate the risks and requirements of the obligation.
9. Third Party Service: Customer acknowledges that the Provider cannot accept any responsibility or liability for the performance, policies or actions of third party digital marketing networks including but not limited to, search engines, display networks, social networks or directories. Customer acknowledges that third party digital marketing networks may drop listings, pause accounts and make or provide other elements for unknown reasons.
10. Placements: Customer acknowledges that Provider cannot guarantee specific delivery or positioning.
11. Confidentiality: Customer and Provider acknowledge and agree that the services and all other documents and information related to the development of digital marketing campaigns (the"Confidential Information") will constitute valuable trade secrets of Provider. Customer shall keep the Confidential Information in confidence and shall not, at any time or after the term of this Agreement, without Provider's prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all of any part of the Confidential Information.
12. Limited Warranty: If the digital marketing campaign does not meet the terms of service, Provider shall be responsible to correct such without unreasonable delay at Provider's sole expense and without charge to Customer, to bring services into conformance with the description of services. This warranty shall be the exclusive warranty available to the Customer. Customer waives any other warranty, express or implied. Customer acknowledges that Provider will not be responsible for the results, productivity or any other measurable metric. EXCEPT EXPRESSLY PROVIDED HEREIN, PROVIDER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO ANY SERVICE OR ITEM PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, TITLE, DESIGN, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM CONDUCT, COURSE OF DEALINGS, CUSTOM, OR USAGE IN TRADE.
13. Independent Contractor: Provider shall be retained as Independent contractor. Provider will be fully responsible for payment of its own income taxes on all compensation earned under this Agreement. Customer will not withhold or pay any income tax, social security tax, or any other payroll taxes on Provider's behalf. Provider understands that it will not be entitled to any fringe benefits that Customer provides for its employees generally or to any statutory employment benefits, including without limitation worker's compensation or unemployment insurance.
14. Equipment: Customer agrees to make available to Provider, for Provider use in performing the services required by the Agreement, such items of hardware and software as Customer and Provider agree are reasonably necessary for such purpose. Customer agrees to make available any access to services, hosting or other resources deemed necessary by Provider to fulfill its obligations under the Agreement.
15. Installation Charges: Customer agrees to indemnify the Provider against Installation fees, set up fees, development fees and other fees or charges resulting from the installation of tracking and analytic codes or other charges resulting from the use of the Providers digital marketing services.
16. Entire Agreement: The Agreement contains the entire agreement between both parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or talk, between the parties related to the subject matter hereof. No modification of the Agreement shall be valid unless made in writing and signed by both parties hereto.
17. Binding Effect: The Agreement shall be binding upon and inure to the benefits of Customer and Provider and their respective successors and assigns.
18. Waiver: The waiver by either party of any breach or failure to enforce any of the terms and conditions of the 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 ever term and condition of the Agreement.
19. Good Faith: Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of the Agreement.
20. Right to Remove Resources: In the event Customer fails to make any of the payments within the time prescribed in the agreement, Provider has the right to remove, pause or delete any digital marketing campaigns under Provider control until payment is paid in full, plus accrued late charges of 1.5% per month.
21. Indemnification: Customer warranties that everything it provides Provider to employ in the digital marketing campaign is legally owned or licensed to Customer. Customer agrees to indemnify and hold Provider harmless from any and all claims brought by any third party relating to any aspect of the digital marketing campaign, including but without limitation, any and all demands, liabilities, losses, costs and claims inducing attorney's fees arising our of injury caused by Customer's products/services, material supplied by Customer, copyright infringement, and defective products sold via the digital marketing campaign, Customer agrees to indemnify Provider from responsibility for problems/disruptions caused by third-party services that Customer may use, such as merchant accounts, shopping carts, shipping, hosting services, real-time credit card processing and other service that relate to the ownership and operation of the digital marketing campaign. Customer agrees to indemnify and hold Provider harmless from any and all claims brought by any third party relating to the use of digital tracking measures including but not limited to analytics applications.
22. Limits of Liability: Provider's cumulative, aggregate liability in connection with or arising in any way or in any degree from this Agreement, o otherwise from the acts or omissions of Provider under any and all legal theories will not exceed the less of (1) $15,000 or (2) the total amount paid by the Customer or Provider in the 12 months before such claim arose. NOTWITHSTANDING ANYTHING TO THE CONTRARY, PROVIDER WILL NOT BE LIABLE UNDER ANY LEGAL THEORY FOR INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOSSES; LOST PROFITS OR BUSINESS OPPORTUNITIES; OR THE COST OF PROCUREMENT OF SUBSTITUTE ITEMS OR SERVICES. Customer hereby acknowledges that the remedies set forth above are reasonable and will not fail of their essential purpose.
23. Force Majeure: No failure, delay, or default in performance of any obligation under this Agreement (other than payment obligations) will constitute a breach of the Agreement if it is caused by strike, fire, shortage of materials, act of public authority, civil disorder, vandalism, war, severe weather, natural disaster or other act of God; terrorism, or other cause that is beyond the reasonable control of the Party otherwise chargeable, for so long as cause continues and for a responsible period of time thereafter.
24. Mediation: The Parties agree to submit all claims or controversies arising out of or relating to this Agreement to mediation in Fort Myers, FL. Such mediation must be initiation by notifying the other Party of written demand for mediation. The Parties will equally share the costs of the mediation. If the dispute is not resolved by mediation within 60 days, the Party seeking relief will have the right to pursue all remedies available at law. Notwithstanding the foregoing, either Party may (i) terminate the Agreement according to its terms or (ii) seek injuctive relief to prevent irreparable and immediate harm.
25. Forum, Choice of Law: The Agreement will be governed by the laws of the State of Florida applicable to agreements made and to be performed wholly within Florida, without regard to conflicts of laws principles. The Federal District Court for the Middle District of Florida or the circuit court in and for Lee County, Florida will be exclusive venue for any court proceeding between the Parties arising out of , or in connection with the Agreement. The Parties hereby submit to and consent irrevocably to the jurisdiction of such courts for these purposes.
26. Usage and Ownership: The Agreement does not confer on Customer any license, ownership of, or interest in Provider's proprietary intellectual property. Provider has developed is proprietary intellectual property exclusivity at its private expense. Customer agrees that all right, title, and interest in and to any aspect of Provider's proprietary intellectual property and all related technology and all edits. Improvements, additions, modifications, and derivative works prepared from or relating to them are and will remain the exclusive property of Provider.
27. Use of Material for Promotional Purposes: Customer grants Provider the right to use its work in producing digital marketing campaign for promotional purposes and/pr cross-link it with other advertising developed by Provider. Customer grants Provider the right to list, reference or otherwise identify Customer as a client of Provider in Provider's advertising and marketing.
28. Rights to Make Derivative Works: Provider will have the exclusive rights in making any derivative works form any of its work, practices, coding, programming or other work in regards to the digital marketing campaign.
29. Attorney's Fees: In the event any party to the Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorney's fees and costs, including expert witness fees.
30. Identification of Provider: Customer agrees that Provider identification may be annotated, and remain with the code or on the web site as the authors and or service providers. Customer also agrees to put Providers copyright notice on the digital marketing campaign reports and the relevant content therein.
31. Assignability: Provider may assign this Agreement. Customer may not assign this Agreement.
32. Representations: Each party represents and warrants that, on the date of first purchase, they are authorized to enter the Agreement in entirety and duly bind their respective principals.
33. Section Headings: Section headings in this document are for descriptive purposes.
34. Miscellaneous: The Agreement constitutes the entire agreement between the Parties relating to Provider's services and supersedes all prior agreements, understandings, and representations relation thereto. No change in this Agreement will be effective or binding unless signed by Customer and a duly authorized officer or Provider. The Agreement will be binding on the Parties and their successors and permitted assigns. Nothings contained in the Agreement will be construed to create a joint venture, partnership, or like relationship between the Parties, and their relationship is and will remain that of independent Parties to a contractual service relationship. In no event will either Party be liable for the debts or obligations of the other Party. Provider may refer to Customer by name in advertising and promotional materials in connection with Provider's services. Except as explicitly set forth herein. Noe of the provision of the Agreement will be for the benefit of or enforceable by any third party. Section titles are for convenience only and will not affect the meaning of the agreement. No failure by a Party to insist upon the strict performance of any term or condition of the agreement or to exercise any right or remedy here under will constitute a waiver.