- 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, (ii) “Client Data” means content or information to be accessed, used, or analyzed by Provider Parties while performing Digital Services, including but not limited to Client web site and social media content (including, without limitation, content, photos, videos, recordings, links, and other items and materials), source code or technical configurations of online or mobile sites, online traffic analytics, marketing campaign goals or metrics, and personal data or online identifiers (e.g., IP addresses, email addresses, cookies) related to individuals who may be consumers or online visitors of Client sites (iii) “Seller” means the seller of Digital Services to Client, (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, 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 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.
- Copyrights and Trademarks. Client represents to Seller and unconditionally guarantees that any Client Data including text, graphics, photos, designs, trademarks, or other artwork furnished to Seller for digital marketing purposes including web pages, social media posts, directory posts, ads, and other digital marketing campaigns; that Client owns, has permission from the rightful owner, or that the Client has a license for the specified purpose to each of these elements, and will hold harmless, protect, and defend Seller from any claim or suit arising from the use of such elements provided by Client.
- INDEMNIFICATION. CLIENT REPRESENTS AND WARRANTS TO SELLER AND THE OTHER PROVIDER PARTIES THAT CLIENT’S DATA SHALL NOT GIVE RISE TO A CLAIM BY A THIRD PARTY OR GOVERNMENT REGULATORY AUTHORITY FOR FRAUD, MISREPRESENTATION, DEFAMATION, TRADE DISPARAGEMENT, INVASION OF PRIVACY, 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 CLIENT’S 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 ALSO ACKNOWLEDGES AND AGREES THAT CERTAIN PRODUCTS AND SERVICES MAY NOT ENABLE FULL LEGAL COMPLIANCE WITH APPLICABLE LAWS SUCH AS THE AMERICANS WITH DISABILITIES ACT.
- 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.
- Upon termination of these Terms and Conditions of Services, content, assets, and account access transition will be determined based upon the 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 Plus, 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 (transition services will be subject to additional fees).
Client is responsible for the quality and performance of their website and in no event will Provider be liable to Client or any third party for any damages including lost profits or other incidental, consequential or special damages arising out of the inoperability of the web pages or website. Our products and services are provided “as is” without warranty, either expressed or implied.
Unless specifically contracted and in writing within the Statement of Work, Client understands that Provider does not produce ADA compliant websites in any way and has made no representations that any webpages will be ADA Compliant. ADA compliance rests solely with the Client and Client agrees to indemnify and hold Provider Services harmless against any liability arising from any non-compliance claims. ADA Services contracted from Seller may include third-party software for the purposes of enabling features required for those with disabilities that help achieve compliance. This software is not warranted by Seller and Seller does not guarantee compliance. Seller will provide services including: configuration and implementation; initial assessments and monthly recap utilizing the software scans; litigation support package, if required; and custom consulting services for specific ADA based objectives.
Provider adheres to best practices with backups, recoverability, redundant equipment, and redundant services with its hosting services; however, Provider cannot guarantee uptime and is not liable for any business loss resulting from website downtime, data loss, or data breaches. Client acknowledges that Client is ultimately responsible for data integrity and data backup and agrees to hold Provider harmless against claims related to lost or damaged data.
- Paid Services: All advertising content created by Provider Parties and posted for the Client is considered owned by the Client only upon payment in full for the Digital Services. Campaigns cannot be transitioned, but the data and configuration can be transitioned to the Client upon request by Client upon termination and payment in full.
Seller strives to spend the monthly budgeted amount for paid services; however, due to auction/market conditions, campaign targets, and/or timing of campaign configuration and approval, the exact dollar amount may not be achieved. Spend variance of budget vs. actual is reconciled on a monthly basis with communication to Client on recommendations to achieve campaign targets.
- Content: Client represents to Provider and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Provider are owned by Client, or the Client has permission from the rightful owner. Client also agrees that no provided content or media is defamatory or illegal. Client agrees to indemnify and hold Provider harmless, protect, and defend against any liability arising out of content and media provided by the client.
- Fulfillment Services: Deliverables for a service may change at Provider Parties’ option to ensure services meet the latest changes in technology, algorithms, and/or Client market conditions. In the event of service changes Seller will provide notice to the Client.
- If Digital Services are obtained on behalf of Client by an advertising agent for Client, said agency represents and warrants that it is authorized to sign enter into these Terms and Conditions of Services on behalf of its client. It is further understood and agreed that agency is jointly and severally liable for Client’s obligations, including payment.