This Services Agreement (“Agreement”) is made by and between Customer, and Optimized-Marketing.com LLC, a Wyoming limited liability company (“Company”) (each a “Party” and together the “Parties”).
WHEREAS, Company provides on-line marketing services (defined below) to its clients;
WHEREAS, Customer desires to have Company perform the Services as an independent contractor to Customer; and
WHEREAS Company desires to perform such services for Customer, subject to and in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and promises herein contained, the Parties agree as follows:
SERVICES.
Performance of Services. Company agrees to provide the services (the “Services”) and complete the work (the “Work Product”) as set forth in the attached Quote to this Agreement (the “Quote”), incorporated herein by reference, in accordance with the terms and conditions of this Agreement and the Quote.
Work Product. “Work Product” shall mean for the purposes of this Agreement, all digital assets, including but not limited to software, content, information, web design, plugins, widgets, photographs and email addresses, that are used and incorporated into the Services, whether supplied or produced by the Company (the “Company Work Product”), the Customer (the “Customer Work Product”) or any third-party.
Changes Orders. Any material changes to the Services requested by Customer or recommended by Company must be approved by both parties.
License and Limitation of License.
During the Term of this Agreement, Company grants Customer a non-exclusive, non-transferable, worldwide right to use the Services and Company Work Product, solely for Customer’s own internal business purposes, subject to the terms of this Agreement.
Customer will not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third-party the Services or the Company Work Product in any way; or (ii) reverse engineer or access the Services in order to build a competitive product or service. These restrictions shall survive the termination of this Agreement.
CUSTOMER’S OBLIGATIONS.
Intellectual Property. Customer agrees and warrants that all Customer Work Product is the Property of Customer and does not infringe on the copyright, trademark, or other intellectual property of others.
Quality of Service and Support. Customer agrees that it shall (i) ensure that the products or services Customer sells or makes available are not illegal and are accurately represented and that Customer’s webpages and related offerings do not infringe the rights of others; (ii) take full and complete responsibility for any and all disputed business transaction(s) resulting from Customer’s online and e-commerce activities or use of the Services; (iii) immediately notify Company when Customer becomes aware of any critical failure in Services or breach of security.
Responsibility for Content. Customer represents and warrants that it shall take full responsibility, and hold Company harmless, for any inaccuracies, misrepresentations, ambiguities, misprints or typos in any and all content, whether generated by the Company or whether Company had notice of the inaccuracy of the content before made publicly available. Customer, and not Company, is responsible for identifying any and all disclosure statements or legal notices that must be included or associated with the promotion of Customer’s products and services using the Services.
INVOICES AND PAYMENT. The Set-Up fee and the first month’s service payment identified in the Quote are due upon acceptance of this Agreement. Thereafter, you will be invoiced monthly. Payment is due within thirty (30) days of the date of any invoice. Accounts that are overdue by sixty (60) days or more will be charged interest at a rate of one and one-half percent (1.5%) per month or the maximum allowed by law, whichever is less, on any outstanding balance. In the event any such overdue accounts remain unpaid for sixty (60) days or more, Company shall also have the right to suspend or cease providing the Services until such accounts plus any applicable interest charges are paid in full. Payments may be made by automatic withdrawal or by check to: Optimized-Marketing.com LLC, P.O. Box 328, Star Junction, PA 15482.
TERM AND TERMINATION.
Term. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for as long as Company is performing Services pursuant to the Quote or a Statement of Work. If no specific term is specified in the Quote or a Statement of Work, then it shall be agreed by and between the Parties that the term is one (1) year, which shall be automatically renewed on an annual basis, unless either Party gives the other Party notice of its intent not to renew at least thirty (30) days prior to the end of the then current term.
Termination for Breach. Either party may terminate this Agreement (including the Statement of Work) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching party.
Effect of Termination.
Upon the expiration or any termination of this Agreement, Customer will pay Company any amounts that are due and payable for Services performed by Company prior to the effective date of expiration or termination.
The provisions of Sections 6, 7, 8, 9, 10, 11, 12, and 13.5 will survive the expiration or termination of this Agreement.
Any Background Technology licenses granted under this Agreement shall automatically and immediately cease and Customer shall destroy any and all copies the Background Technology or related documentation in its possession.
All Customer Work Product in Company’s possession shall be returned to Customer.
RELATIONSHIP OF PARTIES. Company is an independent contractor and nothing in this Agreement will be construed as establishing an employment or agency relationship between Customer and Company. Company has no authority to bind Customer by contract or otherwise. Company will perform Services under the general direction of Customer, but Company will determine, in Company’s sole discretion, the manner and means by which Services are accomplished, subject to the requirement that Company will at all times comply with applicable law.
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS.
Proprietary Rights and Intellectual Property. The Parties intend and agree that ownership in any and all Intellectual Property remain with the Party that created or introduced the relevant material, and in particular (i) marks that uniquely identify Customer reside with Customer, and (ii) any and all Work Product and other copyrightable works created by Company and/or which uniquely identify Company reside exclusively with Company. The Parties expressly agree that all Company Work Product shall remain the sole and exclusive property of Company, and all Customer Work Product shall remain the sole and exclusive property of the Customer.
Company Work Product. Company shall, as an integral part of the performance of Services, develop certain work products, including inventions, products, designs, drawings, notes, documents, information, documentation, improvements, works of authorship, processes, techniques, know-how, algorithms, specifications, hardware, circuits, computer programs, databases, user interfaces, encoding techniques, and other materials of any kind that Company may make, conceive, develop or reduce to practice, alone or jointly with others, in connection with performing Services, or that result from or that are related to such Services, whether or not they are eligible for patent, copyright, mask work, trade secret, trademark or other legal protection (collectively, “Company Work Product”). Company Work Product includes all programs, systems, data and materials, in whatever form that are (i) included in, or necessary to, the Services; (ii) owned solely by Company, licensed to Company with a right to sub-license, or licensed directly to Customer; and (iii) software or programming tools incorporated in or developed generally to support the Services and/or service offerings and which (a) can be used in websites and systems other than the Services provided to Customer, and (b) can be used independently of Customer Work Product (hereinafter “Background Technology”). Background Technology includes, but is not limited to, software tools of general application not originally created by Company, whether now owned by or licensed to Company to develop or provide any part of the Services (without limitation, PHP: Hypertext Preprocessor, MySQL, Linux, WordPress, and WordPress Themes), computer code generated by or proprietary to Company, and commercial programs and services including, without limitation, Adobe Photoshop, Facebook.com, Gmail.com, and YouTube.com.
Customer Work Product. Nothing in this Agreement shall be construed to convey rights or title to Company of materials that are supplied by, or created by Customer. Customer shall maintain all rights in its trademarks, graphics and content made available to Company.
Co-Branding. Company may place its logo, trade name and/or link at or near the bottom of any and all webpages, media, or email produced by Company as part of the Services.
Ownership of Third-Party Accounts. The Company shall own and maintain all legal right, interest and ownership of any and all third-party accounts either owned by Company prior to the Effective Date of this Agreement, or otherwise used by Company for the general benefit of multiple clients. Such accounts include, but are not limited to, third-party “pay-per-click (or PPC)” accounts such as Google AdWords and Facebook Advertisting Accounts. The Customer shall own and maintain all legal right, interest and ownership of any and all accounts either owned by Customer prior to the Effective Date of this Agreement, or is otherwise dedicated to the Customer’s sole use as mutually agreed by and between the parties. Such accounts include, but are not limited to, third-party social media accounts such as Facebook, Google+, Linked-In and Twitter, that are labeled and associated with Customer’s name and branding.
CONFIDENTIAL INFORMATION. “Confidential Information” means all confidential, non-public or proprietary information or material of a party to this Agreement (the “Discloser”) disclosed by the Discloser to the other party (“the “Recipient”) in connection with the Services, either orally or in writing, regarding the Discloser or its business. For avoidance of doubt and without limiting the generality of the foregoing, Confidential Information includes, without limitation, Customer lists, customer identities, agreements, marketing knowledge and information, pricing information, marketing plans and business plans, strategies, forecasts, reports, financial information, budgets, projections, software, research papers, procedures, routines, financial, marketing, research and development, organizational, technical, merger or acquisition, business policies or practices, trade secrets, data, know-how, plans, and any other information or procedures that are treated as or designated secret or confidential by the Discloser.
The restrictions set forth in this Section 7 shall not apply to: (i) any information that shall become generally known to the public through no fault of Recipient; (ii) any information that shall be received in good faith by the Recipient from a third party having legitimate and unrestricted possession thereof and the unrestricted right to make such disclosure; or (iii) any information that Recipient can demonstrate was within Recipient’s legitimate and unrestricted possession prior to Discloser’s disclosure in connection with this Agreement.
Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the Services (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Section 7; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. To the extent legally permitted, Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
Injunction. Recipient agrees that breach of this Section 7 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
Termination & Return. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.
Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement: An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (a) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
Feedback. “Feedback” means any suggestion or idea for improving or otherwise modifying any of Company’s products or services, regardless of its source. Company does not agree to treat as confidential any Feedback provided to Company, and nothing will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting the source of the Feedback.
IDENTIFYING CUSTOMER AS A CLIENT. Company may identify Customer as a client including, without limitation, on Company’s websites. Company may use Customer’s trade name and/or trademarks solely with Customer’s prior written approval.
LIMITATION OF WARRANTIES.
Non-infringement. Company represents and warrants that the Services will not infringe, misappropriate or violate the copyrights of any third party, except to the extent any portion of the Services incorporates material created, developed or supplied by Customer or by a third party on behalf of Customer. Excluded from this warranty are any Intellectual Property Rights relating to patents or that otherwise require a study, research or evaluation of the “prior art” prior to performing the Services or the Company Work Product. Furthermore, Company hereby disclaims any and all warranties relating to non-infringement of Intellectual Property Rights for any materials that are produced according to or based on the specifications, requirements, diagrams or requests that are created, developed or supplied by the Customer.
No Other Warranties, Express or Implied. EXCEPT AS SET FORTH IN THIS SECTION 9, COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED IN CONNECTION WITH THE SERVICES AND COMPANY WORK PRODUCT, INCLUDING THE RESULTS AND PERFORMANCE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY OF COMPANY TO CUSTOMER FOR DAMAGES RELATING TO COMPANY’S FAILURE TO PERFORM THE SERVICES SHALL BE LIMITED TO REIMBURSEMENT OF THE TOTAL FEES PAID BY CUSTOMER TO COMPANY OVER THE THREE (3) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. NOTWITHSTANDING THE FOREGOING, THE MAXIMUM LIABILITY OF COMPANY TO CUSTOMER FOR DAMAGES FOR ANY AND ALL OTHER CAUSES WHATSOEVER, AND CUSTOMER’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO REIMBURSEMENT OF THE TOTAL FEES PAID BY CUSTOMER TO COMPANY OVER THE THREE (3) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
INDEMNIFICATION. Customer agrees to indemnify, defend and hold harmless Company and its directors, officers, employees, agents, successors and assigns (collectively, the “Indemnitees”) from and against any and all claims, losses, damages, liabilities, actions, costs and expenses, including, but not limited to, reasonable legal fees and expenses, paid or incurred by Company and arising directly and indirectly out of (i) any breach of this Agreement by Customer; (ii) any breach by Customer of Company’s written policies or standards, (iii) any claim or dispute regarding Customer’s products, services or offerings, including but not limited to those made available, promoted or mentioned online, or using e-commerce or the Services, or any inaccuracies, misrepresentations, ambiguities, misprints or typos in the same; or (iv) any claim by a third party that any Services or any portion thereof infringe that third party’s trademark or copyright or misappropriate that third party’s trade secret or other intellectual property right. The foregoing indemnification obligation shall not apply to losses to the extent resulting from or arising out of: (a) the negligence, recklessness or willful misconduct on the part of any of the Indemnitees; (b) the failure by the Indemnitees to comply with applicable Laws; and/or (c) any breach of this Agreement by the Indemnitees.
DISPUTE RESOLUTION. In the event any dispute develops between Company and Customer that in any way is related to or arises out of this Agreement and/or the performance of the Services, the complaining party shall submit the dispute(s) to binding arbitration pursuant to the Pennsylvania Uniform Arbitration Act [42 Pa.C.S. §7301 et seq. NMSA 1978], to be held in Westmoreland County, Pennsylvania.
MISCELLANEOUS.
No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or available at law or in equity.
Assignment. Customer may not assign this agreement or any of its rights or obligations under this agreement without the Company’s prior written consent. Company may assign this agreement or any of its rights and obligations under this agreement.
Subcontracting. Company may delegate its duties to a third-party as it deems appropriate in the performance of the Services.
Attorneys’ Fees. If any action is necessary to enforce the terms of this Agreement, the substantially prevailing party, as determined by the fact finder, will be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled.
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Pennsylvania, without regard to its choice of law provisions.
Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, by certified mail, or by e-mail and in each instance will be deemed given upon receipt. All notices will be sent to the addresses set forth below or to such other address as may be specified by either party to the other in accordance with this Section 13.7
Optimized-Marketing.com LLC P.O. Box 328 Star Junction, PA 15482 info@optimized-marketing.com
Entire Agreement. This Agreement, together with the Quote and any mutually agreed to Statements of Work, constitutes the complete and exclusive understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.
Waiver. The waiver of any breach of any provision of this Agreement will not constitute a waiver of any subsequent breach of the same other provisions hereof.
