- Definitions. For purposes of these Terms and Conditions of Digital Services (these “Terms and Conditions of Services”), these terms shall have the following meanings: (i) “Client” means the end user purchasing and obtaining Digital Services from Seller, order forms may reference “Client”, “Customer” or “Advertiser” all are considered Client for this agreement (ii) “Client Data” means data, content or information to be accessed, used, or analyzed by Provider Parties while performing Digital Services, including but not limited to, Client online and mobile web site and social media content, and Client advertising or marketing materials, including, without limitation, content, text, photos, videos, illustrations, graphics, designs, audio and/or visual materials, recordings, links, trade names, trademarks, service marks, and other items and materials; source code or technical configurations of online or mobile sites; traffic analytics; marketing campaign goals or metrics; personal data or online or mobile identifiers (e.g., IP addresses, phone numbers, device identifiers, email addresses and cookies) related to individuals who may be consumers or visitors of Client sites; and any data, content, information, items or materials provided or made available to Provider Parties; (iii) “Seller” means the seller of Digital Services to Client, order forms may reference “Seller”, “Publisher”, or “Service Provider” all considered Seller for this agreement (iv) “Digital Services” means digital marketing services purchased by Client from Seller, which may include local SEO, Organic SEO, social media, paid media, web development, web maintenance, web hosting or other digital marketing services, certain of which are further described in Exhibit A attached to these Terms and Conditions of Services, and (v) “Provider Parties” means Seller and its subcontractors, suppliers and service providers (and their respective subcontractors, suppliers and service providers) providing Digital Services for or on behalf of Client.
- These Terms and Conditions of Services are a binding contract. They contain important information regarding Client’s legal rights and obligations to use the Digital Service(s). PLEASE REVIEW THESE TERMS AND CONDITIONS OF SERVICES CAREFULLY. Client is responsible for ensuring that Client’s use of the Digital Service(s) complies with the terms, conditions, and policies set forth in, or otherwise incorporated into, or referenced in, these Terms and Conditions of Services. IF YOU FAIL TO COMPLY WITH THESE TERMS AND CONDITIONS OF SERVICES, THE PROVIDER PARTIES HAVE THE RIGHT TO TERMINATE THE DIGITAL SERVICE(S) PROVIDED TO YOU AND TO TERMINATE THESE TERMS AND CONDITIONS OF SERVICES. If one or more of the Provider Parties takes this action, it (they) may do so immediately and without prior notice to Client.
- Right to Access. Client hereby authorizes Provider Parties to access and use Client Data for the sole purpose of providing Digital Services. Client represents and warrants that such Digital Services, and access and use by Provider Parties, is permitted by law and conforms to the Client’s own contractual obligations or privacy notices. Each Provider Party will use commercially reasonable efforts to maintain the confidentiality of any such Client Data accessed by the Provider Party.
- Ownership and License Rights. Client represents and warrants to Seller and the other Provider Parties that it owns, licenses, or otherwise has all rights to the Client Data submitted or made available by Client to Provider Parties necessary for the Provider Parties to provide the Digital Services (including, but not limited to, all text, data, still pictures, illustrations, graphics, designs, other visual and/or audio materials, trade names, trademarks, service marks and metadata, and including all data, content, information, items or materials provided or made available to Provider Parties). Client further represents, warrants and agrees that the Client Data (i) contains no defamatory, libelous, disparaging, illegal or fraudulent material, and (ii) does not violate or infringe any right of privacy or publicity, or any intellectual property, proprietary or other rights of any third persons.
- INDEMNIFICATION. CLIENT REPRESENTS AND WARRANTS TO SELLER AND THE OTHER PROVIDER PARTIES THAT CLIENT DATA, ACCESS PROVIDED TO CLIENT DATA, AND USE OF CLIENT DATA IN CONNECTION WITH DIGITAL SERVICES, COMPLIES WITH ALL LAWS AND SHALL NOT GIVE RISE TO A CLAIM BY A THIRD PARTY OR GOVERNMENT REGULATORY AUTHORITY FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, FRAUD, MISREPRESENTATION, DEFAMATION, TRADE DISPARAGEMENT, PRIVACY VIOLATIONS, VIOLATION OF ANY LAW, RULE, OR REGULATION, OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS (COLLECTIVELY “THIRD PARTY CLAIMS”). CLIENT AGREES TO DEFEND, REIMBURSE, PAY, INDEMNIFY AND HOLD PROVIDER PARTIES, THEIR RESPECTIVE PARENTS, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, OWNERS, MANAGERS, MEMBERS, EMPLOYEES, REPRESENTATIVES, AGENTS, CONTRACTORS, SUBCONTRACTORS, SUCCESSORS AND ASSIGNS HARMLESS FROM AND AGAINST ANY LIABILITIES, LOSSES, DAMAGES, JUDGMENTS OR CLAIMS AND ALL COSTS AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES AND COSTS, INCURRED IN CONNECTION WITH ANY ACTION, SUIT, CLAIM OR PROCEEDING OF WHATEVER NATURE THREATENED OR BROUGHT AGAINST ANY PROVIDER PARTIES ARISING FROM (I) ANY OF THE CLIENT DATA, INCLUDING, WITHOUT LIMITATION, THE ACCESS AND USE OF CLIENT DATA, OR (II) VIOLATION BY CLIENT OF ANY APPLICABLE LAW, ORDINANCE, RULE OR REGULATION, OF ANY STATE, CITY, PROVINCE, POLITICAL SUBDIVISION OR OTHER GOVERNMENTAL BODY.
- DISCLAIMER. CLIENT AGREES AND ACKNOWLEDGES THAT THE PROVIDER PARTIES HAVE NOT MADE ANY REPRESENTATIONS OR GUARANTEES REGARDING THE EXPECTED BENEFITS, PROFITABILITY OR EFFECTIVENESS OF THE DIGITAL SERVICES, NOR CAN THEY DO SO. THE DIGITAL SERVICES ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. THE PROVIDER PARTIES DISCLAIM ALL WARRANTIES WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. THE PROVIDER PARTIES DO NOT WARRANT, REPRESENT OR GUARANTEE THAT THE DIGITAL SERVICES WILL BE AVAILABLE, UNINTERRUPTED, ERROR-FREE OR SECURE. THE PROVIDER PARTIES HAVE NO CONTROL OVER THIRD PARTIES, INCLUDING SEARCH ENGINE RANKING COMPANIES, SOCIAL MEDIA OUTLETS, BRAND REPUTATION OR PUBLIC RELATIONS OUTCOMES AND FULLY DISCLAIM ALL LIABILITY FOR ANY ACTIONS TAKEN BY ANY THIRD PARTIES. CLIENT REMAINS RESPONSIBLE FOR ALL ASPECTS OF LEGAL COMPLIANCE WITH RESPECT TO ITS SITES AND SERVICE PROVIDERS ACCEPT NO RESPONSIBILITY FOR ANY FAILURE OF A SITE TO MEET ANY LEGAL REQUIREMENT.
- LIMITED LIABILITY. PROVIDER PARTIES SHALL NOT BE LIABLE TO CLIENT FOR ANY LOST REVENUE, LOST BUSINESS, LOST PROFITS OR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATED IN ANY WAY TO THE DIGITAL SERVICES, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDER PARTIES SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER RELATING TO THE DIGITAL SERVICES, THESE TERMS AND CONDITIONS OF SERVICES, OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE AMOUNT PAID OR DUE TO SELLER FOR THE DIGITAL SERVICES DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
- Each party acknowledges that in order to perform the Digital Services, the parties may provide to each other or a party may be exposed to certain confidential information of the other party, including but not limited to, the identity of customers, business plans, and marketing strategies, and any other information identified by a party as confidential, or information that a reasonable person would understand to be confidential under the circumstances. Each party will take all reasonable steps necessary to protect the other party’s confidential information disclosed to it from improper disclosure. Each party will keep all such information confidential and shall not reveal, share or provide any such confidential information to or with a third party without the prior, express written consent of the other party. The obligations of this provision shall not apply to information which (i) is in the receiving party’s possession before receipt from the other disclosing party; (ii) is or becomes a matter of public knowledge through no fault of the receiving party; (iii) is rightfully received by the receiving party from a third party without a duty of confidentiality; (iv) is independently developed by the receiving party; or (v) is disclosed by the receiving party under operation of law provided the receiving party gives the disclosing party prompt notice of the requirement to disclose and the opportunity to contest such disclosure.
- Either party may cancel the Digital Services for cause upon failure of the other party to observe or perform any of its duties or obligations pursuant to these Terms and Conditions of Services provided that written notice is provided to the breaching party by the other party describing the default in detail, with such termination becoming effective thirty (30) days after notice has been given to the breaching party if default is not cured by the breaching party. A party also has the right to terminate these Terms and Conditions of Services if the other party is adjudicated bankrupt and becomes insolvent or admits in writing its inability to pay its debts as they mature; or if the other party makes an assignment for the benefit of its creditors or applies for or consents to the appointment of a trustee or receiver; or any proceedings are instituted by or against the other party in respect of any bankruptcy, dissolution, reorganization of creditors or insolvency or other proceedings for the relief of the debtor and such proceedings are not dismissed within thirty (30) days after they have been instituted.
- Client agrees that during the provision of Digital Services under these Terms and Conditions of Services and for a period of one (1) year after the expiration or termination of these Terms and Conditions of Services, Client will not, except with prior written approval of Seller, directly or indirectly, individually or as part of or on behalf of any other person, company, employer or other entity, hire or attempt to solicit for hire any persons who have been or are employed by the Seller or its affiliates.
- Unless Client expressly declines (opts out), Client hereby grants to Provider Parties a worldwide, nonexclusive, non-transferable, fully-paid license to display Client’s name, trademarks, and logos for the sole purpose of identifying Client as a customer and promoting Provider Parties’ services.
- Fulfillment Considerations:
○ Provision: Digital Services are as provided by the Provider Parties from time to time in the ordinary course of the applicable Provider Party’s business, or for custom Digital Services, based on a custom strategy agreed to in writing by Seller and Client for the applicable Digital Services.
○ Changes: Performance of and deliverables for a Digital Service may change at Provider Parties’ sole discretion to accommodate current changes in technology, algorithms, and/or Client market conditions.
○ ADA Compliance: Unless specifically agreed in writing between Seller and Client, Client acknowledges and agrees that Provider Parties do not produce, and are not responsible for the production of, Americans with Disabilities Act (“ADA”) compliant websites or other deliverables in any way, and have made no representations and warranties (and specifically disclaim any representations and warranties) that any websites, webpages, or other deliverables will be ADA compliant. ADA compliance rests solely with the Client and Client agrees to indemnify, defend and hold Provider Parties harmless against any liabilities, costs and expenses arising from the allegation of any non-compliance claims. ADA services may be separately and specifically contracted from Seller, which includes third-party software for features intended to assist individuals with disabilities that help achieve compliance; provided, however, this software is not warranted in any manner by the Provider Parties, and the Provider Parties do not guarantee compliance with ADA. If ADA services are contracted from Seller, Provider Parties may provide contracted services such as: configuration and implementation; initial assessments and monthly recap utilizing software scans; and custom consulting services for specific ADA based objectives.
○ Paid Services: Provider Parties do not guarantee position, consistent positioning, or specific placement for any particular PPC keyword, phrase or search term. Seller strives to spend the monthly budgeted amount for paid services; however, due to auction/market conditions, geographic targets, campaign targets, and/or timing of campaign configuration and approval, the exact dollar amount for the budgeted spend may not be achieved each month. Refunds and credits are not available for individual campaigns, ad sets, ad groups, or monthly spend targets as overall objectives and life-time budgets are managed at the account level. Spend is reconciled monthly with communication to Client if there is an under or overspend condition of more than $250.00 USD on recommendations intended to achieve campaign targets.
○ Web Services: Client is solely responsible for the quality and performance of Client’s website, including all Client Data. In no event will Provider Parties be liable to Client or any third party for any lost revenue, lost business, lost profits or any incidental, special, punitive or consequential damages related in any way to Client’s website or webpages, including, without limitation the operation or inoperability thereof.
○ Hosting Services. Provider Parties use commercially reasonable measures to safeguard the availability of data via backups, redundant equipment and redundant services with any provided hosting services; however, Provider Parties cannot and do not guarantee uptime, and are not liable in any manner for any lost revenue, lost business, lost profits or any incidental, special, punitive or consequential damages related in any way to website downtime, data loss or data breaches. Client acknowledges that Client is solely responsible for data integrity and data backup, and agrees to hold Provider harmless against claims related to lost or damaged data.
- Upon termination of these Terms and Conditions of Services, content, assets, and account access transition will be determined based upon the Digital Services delivered and term completion status per the following:
○ Organic Services: All content and content linking created by Provider Parties and residing on the Client’s website are considered owned by the Client only upon payment in full for the Digital Services. All content and content linking created for the Client residing on non-Client websites will no longer be actively managed and the content will expire based upon the policy, process, and procedure of each website. Standard services such as Google Analytics, Google Webmaster Tools, etc. utilized to manage organic deliveries will have administrative access transitioned to the Client upon termination and payment in full.
○ Social Services: All content created by Provider Parties and posted on the Client’s social pages are considered owned by the Client only upon payment in full for the Digital Services. Standard social services such as Facebook, Twitter, Google My Business, etc. utilized to manage social deliveries will have administrative access transitioned back to Client upon termination and payment in full.
○ Web Services: The website structure and logic specifically developed for the Client and content created by Provider Parties and residing on the Client’s website are considered owned by the Client only upon payment in full for the Digital Services. The Client website(s) hosted and maintained by Provider Parties require web hosting or web maintenance services to keep the website(s) active. If there is no agreement for these services and payment for such services has been made, Seller, upon request from Client, will provide Client with an electronic copy of the content created by Provider Parties; however, transition services are subject to separate additional fees.
○ Paid Services: Upon payment in full for the Digital Services, advertising content created by Provider Parties and posted for the Client along with performance data is considered owned by the Client. Campaign structures and all related campaign configuration data is not transferable.
- If Digital Services are obtained on behalf of Client by an advertising agent or other agent for Client, said agency represents and warrants that it is authorized to enter into these Terms and Conditions of Services and any related agreements on behalf of its Client and bind such Client. It is further understood and agreed that the Client is liable for all payment and other obligations under these Terms and Conditions or Services and any related agreements jointly and severally with such agency.
Description of Digital Services
The Digital Services offered by or through Seller may include any of the services, the availability of which shall be determined by Seller in its sole discretion, from which a Client may select, depending on such Client’s needs. Such Digital Services may be modified from time to time by the Provider Parties.
- Local Search Engine Optimization (“SEO”) – Per Location. Designed for mobile and tablets to improve the Client’s reach and relevance within Google My Business / Maps so Client’s businesses can be found when people are on the go. Service includes claiming and verifying location listings, merging duplicate listings, building diverse citations (Top Tier, Niche-Geo and Aggregator Syndication), enhancing citation listings (by adding descriptions, photos), conduct social media scan for customer reviews and recommend best practices, conducting a website scan for Local SEO signals and making appropriate recommendations and measuring results with baseline and/or monthly reporting.
- Organic SEO – Per Location, Product, & Solution – SEO and Schema-focused “on-page” optimization of a Client’s organic presence to drive clicks to customer sites and conversions. Service includes onsite optimization, content creation, link building, and strategic services focused on website engagement and conversions.
- Content – Per Location, Product, and Service – Involves the research, creation and optimization of onsite, blog content, or press releases. Written content is a tiered product (base, specialty or expert) and is based on the level of expertise needed to research and write the content. Services may include: content on boarding call, branded terminology, extensive keyword research, creation of the content, QA of content, and implementation of content (within common CMS).
- Website Design/Redesign for marketing and lead generation purposes. Services include building a responsive design for desktop, mobile, and tablet. Services include building a responsive website built from a WordPress template, which may include: content site pages plus homepage (Client must supply content); if an eCommerce site, a product menu page and build landing pages with content for a number of products (Client must supply content, including stock photos and provide a merchant account); adding of Client provided content including logos, photos, description, menu of services; loading of an initial number of products (Client must supply data in provided template format); setup navigation; addition of Social Icons (Links and Feeds); and Call to Actions elements.
- Website Maintenance and Hosting – Per Website. Website maintenance provides web services for site edits, software updates, and technical support. Website hosting services provide active management and a hosting environment for Client’s website; including servers, networking, monitoring, intrusion scanning, and backups.
- Social Media Services – Per Location, Product & Solution. Monitoring, managing, and engaging the Client’s community through its social presence. Services may include: monthly content calendar including a number of posts per week, support for Facebook, Twitter, and Instagram; a number of custom images per month; Monday through Friday customer service monitoring; monthly boost budget; monthly contesting; active listening; support for LinkedIn or, Instagram or Pinterest; and monthly reporting.
- Reputation Services – Per Location, Product and Service – Monitoring, and best practices on generating, listening and/or responding to reviews. Services may include: online dashboard access, email drip campaign to generate reviews, notifications of new reviews, management of review responses, and performance reporting.
- Paid Media (Search & Social Marketing) – Per Location, Product & Solution. Service may include using a series of paid search providers in order to hit the goal of providing qualified leads or conversions, which may include all top search engines as well as social networks and ad networks; targeting Facebook users who are in Provider Parties’ email opt-in program (as well as Client’s) and the look-alike audience we have created that matches applicable Provider Parties’ users’ likes to drive leads. Specific options may include: search engine marketing (Google Ads); Facebook sponsored posts: Facebook video ads, click-to-website ads, and engagement ads (desktop & mobile); audience targeting using 1st party data, RTB, Search, and Social; retargeting using Google, Yahoo, Bing retargeting and Facebook retargeting (desktop).
- Campaign Tracking – Per Implementation – Tracking is a fundamental component of a marketing campaign. Provider Parties follow best practices regarding measuring, managing, and optimizing towards conversions/ROI. In order to do this, tracking must be set up to help drive customer interaction. Setup fee may include:
○ Google Analytics configuration and implementation
○ Google Tag Manager configuration and implementation
○ Google Ads configuration and implementation
○ Facebook Ads configuration and implementation
○ Ecommerce Configuration (Advanced only)
○ 3rd Party Integration (Advanced only)
○ Cross-Domain Tracking (Advanced only)
○ Call Tracking (2 numbers) (Advanced only, but can be purchased a la carte)
- Programmatic Services – Per Campaign. Service may use one of the defined services to meet Client campaign objectives. Provider does not guarantee the availability of an audience due to the nature of supply, demand and a competitive marketplace.
○ Digital Display: Desktop, Mobile and Tablet Display advertising. Targeting options include: Behavioral, Content, and Contextual.
○ PreRoll Video: Targeted video advertising including all targeting options.
○ Email Marketing: Dedicated email blasts sent out on behalf of the advertiser targeted to specific users and delivered to their personal and/or work email address.
- Custom Services – In addition to the Digital Services identified above, custom services are available that will be quoted and specifically approved by Client and Seller.