A. Company is in the business of online media marketing services, such as providing search engine optimization, content strategy and social media marketing.
B. Company provides its services under the brand ‘Get Found Now’.
C. Client desires to hire Company to provide certain services, as more particularly described on the attached Exhibit "A" (the "Services").
NOW THEREFORE, in consideration of the promises herein contained and other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the undersigned parties, intending to be legally bound hereby, agree as follows:
1. Services. Company will provide the Services to Client. Client and Company shall reasonably cooperate with each other with respect to the design, testing, modifications, deployment, scheduling and implementation of the Services. In delivering Services, Company (in its sole discretion) may determine the scope, quantity, frequency, placement, keywords, targets, social media platforms, and whether a website will be 'live', active or dormant.
2. Software. “Software” means the executable code and source code for the Services which Company develops for Client, including any and all websites, enhancements, updates, upgrades, or modifications in connection thereto. Company retains sole ownership of the Software, at all times.
3. Development; Specifications; Client Cooperation.
(a) Client shall provide preliminary specifications (“Preliminary Specs”) regarding its business, platform, objectives, customers/clients, targets, markets, and other relevant information. Company will develop Services consistent with the Preliminary Specs.
(b) Client acknowledges that in order for Company to provide Services, Client must timely cooperate with Company, which includes responding to and submitting to Company information, input, responses, ideas, concepts, clarifications and approvals, which Company may from time to time request (collectively, “Requests”). Without limiting Company’s other rights and remedies, if within 5 days Client does not meaningfully respond to Company’s Request, then such failure shall be deemed a breach of this Agreement by Client, whereupon Company may, in its sole discretion: (i) reject or proceed with all or part of the Services, as Company deems appropriate; (ii) furnish all or part of the Services in such manner which Company, in its sole judgment, determines; and/or (iii) terminate this Agreement (in which case Client shall not be entitled to any refund for Fees paid, and Client shall remain obligated to Company for all Fees due through the balance of the Term).
4. Term; Fee.
(a) Term. The "Term" of this Agreement commences on the Effective Date and shall continue for 12 months thereafter (unless earlier terminated as set forth in this Agreement). Provisions that survive termination or expiration of the Agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
(b) Fee. The “Fee” for the Term is $6600 . The Fee includes Company's expenses to provide the Services. On the Effective Date, Client shall pay Company $550, which is a non-refundable payment for Services provided during the Term. Thereafter, Client shall pay Company the amount of $550 in regular monthly installments, on or before the 10th day of each calendar month. Payments shall be made without setoff, deduction or demand.
5. Modifications. If Client desires to modify the Preliminary Specs, Services or Software, Company shall have the right (in its reasonable discretion) to accept or disapprove such modifications. Client acknowledges that all modifications constitute additional Services for which Client shall pay Company at its regular hourly rates.
6. Delivery Date. Company intends to deliver the Services to Client promptly after the Effective Date. The date upon which Company actually delivers the Services to Client is referred to in this Agreement as the “Delivery Date”.
7. Scope of License. Any licenses provided for in this Agreement are non-transferable, non-exclusive, and shall be held and used only by Client in the course of performing its Services to its clients/customers, and may not be accessed, shared with or [sub]-licensed to or by Client’s clients.
8. Support. Company will provide "Support" to Client commensurate with support customarily provided by other similarly-situated companies which provide services similar to the Services.
9. Acceptance. Client shall be deemed to have accepted the Services within 96 hours after the Delivery Date, unless Client notifies Company (“Defect Notice”) on or before that period expires, which Defect Notice shall identify with specificity all errors that substantially impair the performance, utility, and functionality of the product or Service (“Defect”). If the alleged Defect is valid, Company will promptly endeavor to correct the Defect.
10. Invoicing and Payment; Interest; Suspension/Cancellation.
(a) Unless a different time period for Client’s payment is expressly set forth in this Agreement, Client shall pay Company all fees, amounts, charges, expense and costs within 10 days after Company’s invoice.
(b) If Client does not make any payment when due, interest shall accrue on the unpaid amount at the monthly rate of 1.5%.
(c) In addition to all of Company’s other rights and remedies (at law or equity), if Client fails to make any payment when due, Company reserves the right (without notice) to suspend, cancel or terminate any Service. Despite any suspension, cancellation or termination of service, Client shall not be released from its obligations under this Agreement, nor shall Company have any liability to Client for any liabilities, claims or expenses arising from or relating to such suspension, cancellation or termination of one or more Services.
(d) Client shall remit payments in such manner which Company from time to time directs (e.g., secure debit/credit card processing, electronic fund transfer, ACH).
11. Taxes. Taxes are Client’s sole responsibility. Client shall pay any and all applicable taxes incurred in connection with this Agreement including (without limitation) any applicable sales or use taxes and any applicable personal property taxes (excluding income taxes assessed against Company).
12. Breach; Termination. If either party breaches this Agreement, such party shall be deemed in “Default” if such party (the “Defaulting Party”) fails to cure the breach within 10 days after the non-breaching party’s notice thereof. In addition to other rights and remedies (at law or equity), in case of Default the non-breaching party shall have the right to earlier terminate this Agreement upon 15 days’ notice to the Defaulting Party. In case of Client Default (including, without limitation, Client failure to timely pay the Premium), Company shall have all rights and remedies available to it at law and equity (including, without limitation, for all costs, expenses, damages, attorney's fees and other amounts). If Company terminates this Agreement because Client is the Defaulting Party, then (i) Client shall not be entitled to any refund for Fees paid, and (ii) Client shall remain obligated to Company for all Fees due through the balance of the Term.
13. Return of Materials. Upon termination of this Agreement, Client shall immediately return to Company all property owned by Company in the possession or control of Client, including (without limitation) documents, Company Technology, Services, and all materials incidental thereto, and Client shall destroy all backup copies of the Services. “Company Technology” shall mean any and all proprietary technology of Company developed by or on behalf of Company, whether exclusively or jointly with Client or a third party, regardless of the source of funding for such development, including (without limitation) any software, websites, keywords, domains and links in connection therewith.
14. No Refund; Payment Obligations. Upon termination of this Agreement, Client shall not be entitled to any refund of any amounts paid to Company in anticipation of Services. Termination of this Agreement shall not relieve Client from its payment obligations under this Agreement.
15. Intellectual Property; Confidential Information.
(a) Ownership. Client agrees that Company Technology, Services, and all materials incidental thereto (collectively, “Property”) developed or provided under this Agreement shall at all times remain and be the sole and exclusive property of Company, and that Company shall own all of the rights, titles, and interest to such Property, including (but not limited to) any and all patents, copyrights, trademarks and trade secrets in connection therewith. The Property shall not be deemed a “work made for hire” under the U.S. Copyright Act, 17 U.S.C. §101, et seq. Client hereby assigns, transfers, and conveys to Company any and all rights, title, and interest that Client may have or accrue in the Property including (but not limited to) any and all patents, copyrights, trademarks and trade secrets in connection therewith.
(b) No Rights to Third-Party Technology. Client acknowledges that Company grants no license or other rights with respect to any third-party technology provided or made available by a vendor (“Vendor”) or other third party in connection with the Services (“Third Party Technology”). Client shall comply with all terms and conditions applicable to the Third Party Technology as set forth by a Vendor or other third party.
(c) Confidential Information. Each party shall maintain Confidential Information in strict confidence. “Confidential Information” shall mean all information disclosed by the disclosing party to this Agreement (“Disclosing Party”) to the receiving party to this Agreement (“Receiving Party”) that is identified by the Disclosing Party as confidential at the time such information comes into the possession or knowledge of the Receiving Party and that is not: (i) already known to the Receiving Party; (ii) in the public domain; (iii) conveyed to the Receiving Party by a third party who is not subject to restrictions to the disclosure or use of such information; (iv) released by the Disclosing Party without restriction; (v) independently developed by the Receiving Party; or (vi) required by court order to be released by the Receiving Party. For purposes of this definition, all information concerning this Agreement, Services and Company Technology shall be deemed Confidential Information of Company. Neither party shall disclose Confidential Information, except to Authorized Persons. “Authorized Person” means Client and employees of Client who agree in writing to maintain the confidentiality of the Confidential Information; and persons or organizations who are authorized in writing by Company to receive Confidential Information and who agree in writing to maintain the confidentiality of Confidential Information. Neither party shall duplicate, use or disclose Confidential Information of the other party except as otherwise permitted under this Agreement.
(d) Trade Secret. Client acknowledges that Company’s Confidential Information derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts by Company under the circumstances to maintain its secrecy; and is a ‘trade secret’ as defined under applicable laws.
(e) No License. The execution of this Agreement or the disclosure of Confidential Information shall not be construed as the grant of a license to Client to use the Confidential Information to develop products or Services (proprietary or otherwise).
(f) Reverse Engineering. Client shall not ‘reverse engineer’ the Services or any software, nor allow them to be ‘reversed engineered’.
(g) No Modifications. Client shall not use the Services or any materials incidental thereto to develop computer software. If a product or Service is modified, such modifications shall be the sole and exclusive property of Company and Company shall own any and all of the rights, title and interest in and to such modifications and any resulting technology or computer software, including (but not limited to) any and all copyrights, patents, trademarks and trade secrets in connection therewith.
(h) Trademarks. Company shall have the right to create or adopt any trademarks, service marks, or trade names for the Services. Client hereby acknowledges that all trademarks, service marks, or trade names used in connection with the Services, and all goodwill associated therewith, is owned exclusively by Company. Company shall retain all rights, titles, and ownership interests in all trademarks, service marks, or trade names in connection with the Services.
(i) Cooperation. Client shall cooperate with Company and provide Company reasonable assistance in securing, maintaining, and enforcing any rights, title, and interests of Company in and to the Property.
(j) No Contest. Client shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets of Company.
16. Limited Warranties; Indemnification; Limited Liability.
(a) Services Warranty. Company’s Services under this Agreement shall be performed in a timely and professional manner by qualified personnel familiar with the Services and shall conform to the standards generally observed in the industry for similar services at the time such Services are rendered. Client’s sole remedy in the event of a breach of this section shall be re-performance of those Services.
(b) WARRANTY LIMITATION. THE SERVICES WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES (EXPRESS OR IMPLIED), INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY. COMPANY HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES, ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY.
(c) Third Party Technology Disclaimer. Company makes no representations or warranties with respect to Third Party Technology. Company shall not be responsible for the Services in connection with Third Party Technology.
(d) No Other Warranties. Client hereby acknowledges and agrees that Company (including officers, employees, agents, directors and independent contractors of Company) has not made or granted any express warranties concerning the Services except for warranties that may be expressly set forth in this Article.
(e) Client Warranty. Client hereby represents and warrants that Client has obtained all necessary authorizations, permissions, and licenses to provide Company any and all technology or information provided by Client to be used in connection with the Services (“Client Materials”). Client hereby represents and warrants that Client has obtained all authorizations, permissions or licenses from third parties to permit Company to perform its Services and that use by Company of any Third Party Technology or Client Materials made available by Client shall not infringe upon or violate any patent, copyright, trade secrets or trademark rights of any third party or violate any laws.
(f) Indemnification. Client shall defend, indemnify and hold Company and its officers, directors, employees, and agents
harmless from and against any and all claims, actions, liability, expenses, costs, or losses arising from: (i) Client’s modification of the Services; (ii) Client’s combination, interface, operation or use of the Services with Third Party Technology; (iii) misuse of the Services by end-users; (iv) the acts (or any failure to act) of Client hereunder; and (v) any breach by Client of the obligations of Client under this Agreement.
(g) Limitation of Damages. Company shall not be liable to Client under this Agreement or in connection with the Services for any lost profits, consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including negligence, and regardless of whether Company has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding any provision to the contrary, the liability of Company for any reason and for any cause of action whatsoever in connection with this Agreement and the Services shall in no event exceed, in the aggregate, the total amounts actually paid to Company for the Services under this Agreement in the 6-month period immediately preceding the event giving rise to such claim. Any damage award in customer’s favor against Company shall be reduced by any refund or credit received by customer under the agreement and any such refund and credit shall apply towards the limitation of liability.
17. Force Majeure. Company shall not be liable for any failure to perform its obligations under this Agreement because of circumstances beyond the reasonable control of Company, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government or governmental authority, declarations of government, transportation delays, power failure, computer failure, telecommunications failure, and any other events beyond the reasonable control of Company.
18. No Assignment by Client. Client may not assign this Agreement or otherwise sell or transfer any of Client’s rights or interests hereunder.
19. Publicity. All publicity of Company and Client’s relationship or the Services shall be subject to Company’s prior approval.
20. Entire Agreement. This Agreement contains the entire understanding of the parties and supersedes all prior oral and written communications, proposals and agreements between the parties concerning the subject matter hereof.
21. Amendments and Modifications. Any alterations, modifications or amendments of a provision of this Agreement shall not be binding unless signed by the party against whom enforcement is sought.
22. Severability. If a provision of this Agreement is rendered invalid, void or unlawful, the remaining provisions shall remain in full force and effect.
23. Captions. The headings and captions of this Agreement are inserted for reference convenience and do not define, limit or describe the scope or intent of this Agreement, or any particular section, paragraph, or provision.
24. Governing Law, Jurisdiction and Waiver of Venue. This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the State of Colorado regardless of the fact that any of the parties hereto may be or may become a resident of a different country, state, or jurisdiction. Any suit or action arising out of this Agreement shall be filed in a court of competent jurisdiction within the County of Arapahoe, State of Colorado. The parties hereby consent to the personal jurisdiction of such courts within such County, and the parties hereby waive any objections to venue in such courts within that County.
25. Attorneys’ Fees. If any action, suit or other proceeding is instituted concerning or arising out of this Agreement, the prevailing party shall be entitled to recover all of such party’s reasonable costs and attorneys’ fees incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions therefrom.
26. Notices. Notices shall be in writing to the party’s respective address set forth elsewhere in this Agreement. Notices shall be given by hand delivery, by nationally-recognized overnight courier (e.g., FedEx), or by U.S. Postal Service (certified or registered mail, return receipt requested).
27. No Waiver. Waiver of breach of this Agreement shall not constitute waiver of another breach. Failing to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.
28. Relationship of the Parties. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity.
29. Assurances. Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to the other party under this Agreement are true, correct and accurate as of the Effective Date to the best of their knowledge.
30. Equitable Remedies. The parties acknowledge that in certain cases damages at law may be an inadequate remedy. In addition to all other remedies that may be available at law or equity, each party shall have the right of specific performance, injunction or other equitable remedy in the event of a breach or threatened breach of this Agreement.
31. Counterparts; Fax. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. Executed copies of this Agreement may be delivered by fax or other electronic transmission.
The undersigned parties have entered into this Agreement as of the Effective Date.