Article 1. Client Obligations
Section 1.1 Disclosing Information allocation of resources and support: Client agrees to provide support, information and resources as requested by Provider. This support includes, but is not limited to: developing web pages containing code to aid in search engine optimization as defined by Provider; uploading files; testing and approving changes provided by Provider and providing reasonable notice to Provider of any changes to the website pages initiated by Client. If programming of dynamic pages is required to integrate SEO changes, all changes will be performed by Client staff unless otherwise specified. Client is responsible in providing a Unique IP address for each promoted website home page on a separate Class C Netblock. Client shall provide an initial written list of keywords associated with content on the website to Provider. Client shall provide any and all requested pages to Provider upon Provider’s verbal or written request within five (5) business days. All uploaded pages provided by the Client must be identical to the code provided by Provider to Client. In the event that the uploaded pages are not identical, the Parties agree that Client shall pay an additional fee to Provider to re-optimize the website. The Client must carry out a full and complete backup of their current website prior to the time the Provider commences services.
Section 1.2 Compliance with the Law: Client acknowledges that Provider exercises no control over the content passing through the website and that it is the sole responsibility of Client to ensure that the information it transmits and receives complies with all applicable laws and regulations
Article 2. Services
Provider agrees to perform for Client the services listed in the Marketing Agreement, executed by both Client and Provider. Such services are hereinafter referred to as “Services.” Client agrees that Provider shall have ready access to Client’s staff and resources as necessary to perform Service Provider’s services provided for by this contract.
Article 3. Consideration
All payments will be paid to the order of WebHEAT, LLC. All marketing services are pre-paid, no work will commence for the given month until payment has been received. In the event Client fails to pay any amount due within five (5) days of the due date Provider may suspend its performance and/or terminate this Agreement and all remaining consideration shall become immediately due and payable. Client agrees to pay Service Provider for Services in accordance with the schedule contained in Marketing Agreement and executed by both Client and Service Provider.
Article 4. Confidentiality
Section 4.1 Confidential Information Defined. Each Party acknowledges that it will have access to certain confidential information of the other Party concerning the other Party’s business, plans, customers, technology and products, including the terms and conditions of this Agreement (“Confidential Information”). Confidential Information includes, but is not limited to: descriptions, business plans, software, Internet designs, test data, other data, reports, recommendations, marketing plans, advertising material, customer lists, business records, projections, products, product information, financial information, other plans or proposals, proprietary information and any other information disseminated by one Party to the other to further the purpose of this Agreement and the performance thereof.
Section 4.2 Non-Confidential Information. Information is not confidential if it is generally known or available to the public, it is known to one party before the other party discloses it, it was independently received by a Party from third party or it was developed independently of the other party.
Section 4.3 Obligation of Nondisclosure. The Parties promise and hereby agree:
(i) To hold Confidential Information in strict confidence;
(ii) To use Confidential Information only for purposes of carrying out this Agreement;
(iii) To only disclose the Confidential Information to those Parties’ officers, employees and agents as necessary to carry out the purpose of this Agreement; and
(iv) Not to disclose Confidential Information to third parties without the other Parties’ prior written approval.
The Parties hereby agree that these obligations shall remain in full force and effect during the term of the Agreement and for three (3) years following termination of this Agreement.
Article 5. Non-Interference with Provider Employees
Client acknowledges that Provider has invested substantial amount of time, money, and effort in recruiting and retaining qualified employees and contractors to perform the services contemplated by this Agreement, and that such personnel are vital to maintaining the good will that Provider enjoys with its customers. Client further acknowledges that Provider’s employees and contractors have been entrusted with access to Provider’s most valuable trade secrets concerning the know-how and special techniques and processes utilized by Provider in rendering services; Provider’s research and development; Provider’s cost, profits, and finances; the compensation, skills, and abilities of Provider’s personnel; the needs and preferences of Provider’s customers and other confidential information that is not generally know to the trade or public. Client further acknowledges that if it were to solicit, recruit or hire any of Provider’s personnel, Provider would incur significant additional costs and lost opportunities in recruiting and hiring replacement personnel, the exact amount of which may be difficult to ascertain. To protect Provider’s interest, Client agrees:
(a) Client shall not directly or indirectly (on its own or through third party recruiters) solicit or induce, or attempt to solicit or induce, any employee or contractor of Provider to leave her or induce her employment or cease or curtail rendering services to Provider.
Article 6. Warranties
(a) Provider represents and warrants that it has the full power and authority to enter into this Agreement. The goods and services furnished under this Agreement are provided “as is,” without any express or implied warranties including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. Provider OFFICIALLY DOES NOT PREDICT NOR GUARANTEE ANY PARTICULAR RANKINGS WITHIN SEARCH ENGINE LISTINGS.
(b) Client represents and warrants that it has the full power and authority to enter into this Agreement Client further represents and warrants that it shall only provide to Provider copyright or trademarked material including trademarked brand names, trademarked logos and/or trademarked copyrighted phrases it has the legal authority to use. Client further represents and warrants that Client’s services, products, materials, data and information used by Client and by its customers and users in connection with this Agreement do not as of the date of this Agreement, and shall not during the term of this Agreement operate in any manner that would violate any applicable law or regulation.
Article 7. Limitation of Provider’s Liability
In no event shall Provider be liable for any lost revenue, lost profits, loss of technology, rights or services, loss of data, or interruption of client’s business, special, incidental, punitive, indirect or consequential damages, suffered by the client, whether or not client has been advised of the possibility of such loss, injury and/or damages. Provider’s maximum aggregate liability to client related to or in connection with this agreement shall be limited to the total amount paid by client to Provider hereunder.
Article 8. Parties’ Indemnity Obligations
(a) Client shall indemnify Provider against all claims, liabilities and costs, including reasonable attorney’ fees and defend any third party claim or suit against Provider arising out of Client acts. Provider shall promptly notify Client in writing of such claim or suit and Client shall have the right to fully control the defense and any settlement of the claim or suit.
(b) Provider shall indemnify Client against all claims, liabilities and costs, including reasonable attorney’s fees, and defend any third party claim or suit against Client arising out of Provider’s acts. Client shall promptly notify Provider in writing of such claim or suit and Provider shall have the right to fully control the defense and any settlement of the claim or suit.
Article 9. Excused Delays in Performance
Neither party shall be liable for any delay of performance, due to causes beyond its reasonable control. This includes but is not limited to acts of nature, delays associated with adjustments needed to comply with search engine algorithm or inclusion guidelines, the arrival of new competitor sites, or the significant modification of web pages by Client thus excluding these failures to perform from being considered a significant material breach of this contract. The time for completing the performance that has been delayed shall be extended by a period equal to the delay so cause.
Article 10. Modifications
This Agreement may be amended at any time but any amendment must be in writing and signed by both Parties.
Article 11. Severability
If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
Article 12. Governing Law-Dispute Resolution
(a) This Agreement shall be construed and enforced in accordance with the laws of the State of California without regard to the choice of law principles thereof. Venue shall be in California and the Parties irrevocably consent to the personal jurisdiction and venue therein.
(b) The parties agree that any and all disputes or controversies of any nature between them arising at any time shall be determined by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) before a single neutral arbitrator (“Arbitrator”). The Arbitrator shall be an attorney or retired judge with at least five (5) years experience an industry closely related to search engine optimization and shall be mutually agreed upon by the parties. If the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by the AAA.
Article 13. Attorneys Fees and Costs
If the Parties enter into Arbitration to enforce this Agreement or the terms thereof, the prevailing party shall be entitled to reimbursement by the other party for reasonable attorneys’ fees, cost and expenses.
Article 14. General Provisions
Section 14.1 Sole Agreement. This is the entire Agreement between Provider and Client.
Section 14.2 Change of Address. Either party may change its address appearing in this Agreement by providing written notice of the change to the other party.
Section 14.3 Independent Contractors The Parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for, or on behalf of the other party. This Agreement does not create any agency, association, partnership, joint venture, sales representation or employment relationship of any kind.
Section 14.4 Notices. All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by either certified mail, return receipt requested, Fax or hand delivery to the parties at the respective addresses.
All notices shall be effective (i) when delivered personality (ii) three (3) days after deposit in mail in accordance with the terms of this Section (14.4) the business day when delivered by a nationally recognized courier (e.g., Federal Express), or (iii) the business day on which transmittal is complete before 5:00 P.M. Pacific Standard Time (PST), provided transmission is followed by notice under one of “(i)” through “(iii)” above.
Section 14.5 Assignment. Client may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Provider, except that Client may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Any attempted assignment or delegation without such consent shall be void. Provider may assign this Agreement in whole or part. This Agreement shall bind and inure to the benefit of each party’s successors and permitted assigns.
Article 15. Terms and Termination
Section 15.1 Term. The term of this Agreement shall commence as of the of signing and terminate on one year from commencement.
Section 15.2 Termination for Cause. Either party shall have the right to terminate this Agreement if the other party breaches any material term or condition of the Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within five (5) days of the due date.
Section 15.3 Survival. The obligations of the Parties in Articles 4 (Confidentiality), 5 (Non-Solicitation), 7 (Limitation of Liability), 8 (Indemnity), 12 (Governing Law and Dispute Resolution) and 14 (General) shall survive termination or expiration of this Agreement. Additionally, all payments owed to Provider that have accrued prior to termination shall also survive termination of the Agreement.
Article 16. Client Billing Contact
Client will be represented by the person listed in Marketing Agreement, who will act as the main point of contact for this campaign and will be responsible for receiving, handling, and paying all invoices sent by Provider.
This contract constitutes the sole agreement between the Provider and Client. This agreement shall be governed and construed in accordance with the laws of the State of California.
Article 17. Use of Work Product.
In Accordance Section 14.3, the Provider is to be considered an independent contractor. Client owns all trademarks, copyrights, and interest in any content, media, or other elements of content created by the Client.