DIGITAL MARKETING AND MANAGED SERVICES AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
This Digital Marketing and Managed Services Agreement, also known collectively as Services, is between SERVICE PROVIDER and COMPANY, and is made effective as of the date of acceptance and/or service activation. This Agreement sets forth the terms and conditions of your use of Digital Marketing and Managed Services and represents the entire agreement between COMPANY and SERVICE PROVIDER concerning the subject matter hereof.
Your activation of service or signature of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with our General Terms and Conditions Agreement, which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein.
The terms “service provider”, “we”, “us” or “our” shall refer to SERVICE PROVIDER. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement (CUSTOMER). Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, you may have up to 30 days to terminate service but will be bound by the termination fees as referenced in any agreements which are incorporated herein. We may occasionally notify you of changes or modifications to this Agreement by email, but are not required to notify. It is therefore very important that you keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
The SERVICE PROVIDER will provide Services based on the information CUSTOMER provided in CUSTOMER completed setup forms and/or meetings and the Order. The SERVICE PROVIDER will attempt to provide the first draft of any necessary information, research or related documentation within the first two weeks. Reports may be distributed monthly or quarterly to CUSTOMER at SERVICE PROVIDER discretion. Any change requests can be accommodated and will be billed at the Service Provider’s hourly rate.
- License Grant and Restrictions
Subject to the terms and conditions of this Agreement, SERVICE PROVIDER hereby grants you a limited, non-exclusive, non-transferable, license to access and use the Service solely on a server controlled by SERVICE PROVIDER and solely for your own internal business purposes. The license granted herein is conditioned on your continued compliance with the terms and conditions of this Agreement. Your use of the Services is limited to the scope of the license granted in this Agreement and this Agreement does not permit you to use the Service other than as provided herein. You acknowledge that the Services’ constitutes valuable trade secrets and/or the confidential information of SERVICE PROVIDER or its licensors. You acknowledge and agree that except as otherwise authorized under this Agreement or otherwise specified in writing between the parties:
- You shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, grant a security interest in, or otherwise transfer any rights to, or commercially exploit, the Services or any information, documents, software, products and services contained or made available to you in the course of using the Services (the “Content”) or use the Service to run or as part of a service bureau, outsourced, or managed services arrangement;
- You shall not copy, reproduce, republish, upload, post, transmit or distribute the Services or the Content in any way;
- You shall not modify, translate, alter, adapt, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), reproduce, distribute or display, or create derivative works, compilations or collective works based on the Services or the Content;
- You shall not knowingly or negligently permit other individuals or entities to use or copy the Services, or create Internet “links” to the Services or “frame” or “mirror” the Services on any other server or wireless or Internet-based device;
- You shall not access the Services for any reason, including without limitation, in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, (c) copy any ideas, features, functions or graphics of the Service, (d) monitor its availability, performance or functionality, or (e) for any other benchmarking or competitive purposes;
- You shall not access the Services if you sell or provide any service, software, or product that may compete with SERVICE PROVIDER’s services, software, or products, which include, but are not limited to, the service of search engine optimization (a “Competitor”);
- You shall not attempt to use or gain access to data, accounts, hosts, systems or networks of SERVICE PROVIDER or any of its customers or suppliers, or those of any other party; breach the security of another user or system, or attempt to circumvent the user authentication or security of any host, network, or account, including, without limitation, accessing data not intended for you or logging into or making use of a server or account you are not expressly authorized to access;
- You shall not attempt to probe, scan or test the vulnerability of a system, account or network of SERVICE PROVIDER or any of its customers or suppliers, any SERVICE PROVIDER product or service, or those of any other party;
- You shall not interfere, or any attempt to interfere, with service to any user, host or network including, without limitation, mail-bombing, flooding, and attempting to deliberately overload the system or distribute programs that “crack,” or make unauthorized changes to, the software;
- You shall not forge any TCP-IP packet header or any part of any header information, falsify, alter or remove address information or other modification of e-mail headers; collect responses from unsolicited bulk messages, falsify references to SERVICE PROVIDER or the Services, by name or other identifier, in messages; impersonate any person or entity, engage in sender address falsification, forge anyone else’s digital or manual signature, or perform any other similar fraudulent activity;
- You shall not restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Service (except for tools for safety and security functions), including, without limitation, posting or transmitting any information or software which contains a worm, virus, or other harmful feature, or generating levels of traffic sufficient to impede others’ ability to use, send, or retrieve information;
- You shall not restrict, inhibit, interfere with, or otherwise disrupt or cause a performance degradation, regardless of intent, purpose or knowledge, to the Services or any SERVICE PROVIDER (or SERVICE PROVIDER supplier) host, server, backbone network, node or service, or otherwise cause a performance degradation to any SERVICE PROVIDER (or SERVICE PROVIDER supplier) facilities used to deliver the Services; and
- You shall not create or use any program, tags, markers, bots, mousetraps, highjackers or other similar computer routines or sub-routines to automatically access or manipulate the Services. Because of the difficulty associated with quantifying damages, in addition to any other damages to which SERVICE PROVIDER may be entitled, if actual damages cannot be reasonably calculated then you agree to pay SERVICE PROVIDER liquidated damages of $500 for each violation of this Section 1 or the maximum liquidated damages permitted under law, whichever is greater; otherwise you agree to pay SERVICE PROVIDER’s actual damages, to the extent such actual damages can be reasonably calculated.
- Your Obligation
You are responsible for all activity occurring when the Services are accessed through your password and you shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify SERVICE PROVIDER immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to SERVICE PROVIDER immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you; (iii) notify SERVICE PROVIDER when you no longer require access to the Service; and (v) Keep all of your profile information current.
- Intellectual Property Ownership
All right, title and interest in the Services, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to SERVICE PROVIDER or its licensors, and you shall have no rights whatsoever in any of the foregoing. You acknowledge that the Service constitutes a valuable trade secret and/or is the confidential information of SERVICE PROVIDER or its licensors. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in the Service, in whole or in part. Except for any Materials (defined below), all content and materials included as part of the Service, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (the “Works”) are the property of SERVICE PROVIDER or its content suppliers and is protected by copyrights, trademarks, trade secrets, or other proprietary rights and these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Works are copyrighted as individual works and as a collective work under the U.S. copyright laws (17 U.S.C. Section 101, et. seq.) and international treaty provisions, and SERVICE PROVIDER owns a copyright in the selection, coordination, arrangement and enhancement thereof. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Works, in whole or in part. Any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Works, except as specifically permitted herein, is strictly prohibited. You understand and acknowledge that unauthorized disclosure, use or copying of the proprietary products and services provided pursuant to this Agreement may cause SERVICE PROVIDER and its licensors irreparable injury, which may not be remedied at law, and you agree that SERVICE PROVIDER and its licensors’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
- Billing Plans for Services
The Services have one time fees and a monthly payment billing plan that has a commitment term. If CUSTOMER cancels the Services prior to completing the term, CUSTOMER will be liable to termination fees as indicated in the terms and conditions.
- ELECTRONIC COMMUNICATIONS AND CELL PHONE CALLING
CUSTOMER consents to receive notices, documents, disclosures and other communications from SERVICE PROVIDER (“Communications”) in an electronic format to CUSTOMER Contact Email Address and agree that the Communications provided to CUSTOMER by SERVICE PROVIDER electronically will be deemed a writing. If CUSTOMER does not want to consent to receive Communications from SERVICE PROVIDER electronically or if CUSTOMER withdraws such consent, then CUSTOMER must stop using the Service. The withdrawal of CUSTOMER consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between SERVICE PROVIDER and CUSTOMER prior to the time CUSTOMER withdraws CUSTOMER consent.
In addition, CUSTOMER hereby agrees that CUSTOMER acceptance of this Agreement constitutes CUSTOMER written consent: (i) to SERVICE PROVIDER calling CUSTOMER at the phone number that CUSTOMER provided SERVICE PROVIDER in connection with CUSTOMER subscription to or use of the Service, and (ii) if CUSTOMER provided SERVICE PROVIDER with a mobile or cellular phone number, to SERVICE PROVIDER also texting CUSTOMER at such mobile or cellular phone number in connection with CUSTOMER subscription to or use of the Service. Consent to receiving autodialed marketing telephone calls and/or marketing texts from SERVICE PROVIDER is not required to purchase products or services from SERVICE PROVIDER. CUSTOMER may exercise CUSTOMER option not to receive any marketing communications from SERVICE PROVIDER by emailing firstname.lastname@example.org or calling SERVICE PROVIDER customer service.
- CUSTOMER AND TECHNICAL SUPPORT
SERVICE PROVIDER provides technical support in connection with the features and tools available through the SERVICE PROVIDER Services selected based on the level of the service and support contracted by CUSTOMER.
- Additional Terms Specific to Managed Services
In addition to the forgoing terms and conditions of this Agreement, the following additional terms and conditions apply to any and all purchased Digital Marketing and Managed Services.
- Description of Digital Marketing and Managed Services. SERVICE PROVIDER may make available from time to time certain add-on, which includes but is not limited to, search engine marketing, social media marketing, internet marketing, internet or online services, email marketing, email services, database integration services, software connectivity, security services, ad placement, reputation management, search engine optimization services such as link building, key word optimization, content writing, and directory submission (collectively, the “Services”). You may request to purchase Services by contacting SERVICE PROVIDER. SERVICE PROVIDER will then send you an email or an order (collectively, the “service order”) specifying the scope of the Managed Services to be provided, the setup fee and monthly fee amounts, and any additional terms and conditions that may apply. Your signature or email confirmation to the Service Order or the activation of Services will constitute your acceptance of the terms and conditions of this Agreement.
- You hereby grant to SERVICE PROVIDER all rights, licenses, access, and authorizations necessary to use, reproduce, distribute, modify, display, and make changes to your website for purposes of providing the Managed Services. Such rights may also include the right to create accounts with, and make payments to, online directories on your behalf.
- Ownership of Materials. Subject to the terms, conditions, and limitations of this Agreement, any written content prepared by SERVICE PROVIDER and delivered to you as a deliverable item under the Services (the “Materials”) shall be deemed “work-for-hire” and SERVICE PROVIDER assigns to you any copyrights it may have to the Materials unless the Materials are related to Search Engine Optimization (SEO) services. In the case of SEO, all materials belong to SERVICE PROVIDER and will be removed from the website if SEO services are ended.
- Additional Disclaimer. Except to the extent as may be specified by SERVICE PROVIDER in a Service Order, SERVICE PROVIDER expressly disclaims all warranties, express or implied, with respect to the products and services offered by SERVICE PROVIDER under this Agreement, including without limitation any implied warranties of merchantability and fitness for a particular purpose. SERVICE PROVIDER’s products and services are provided “as is” and “with all faults” and the entire risk as to the satisfactory quality, performance, accuracy and effort is with you. Except as set forth in a Service Order, SERVICE PROVIDER does not warrant your use of SERVICE PROVIDER’s products or services will be error-free, uninterrupted, virus-free, or secure. You hereby acknowledge that you have relied on no warranties from SERVICE PROVIDER other than as expressly set forth in a Service Order. The provisions of this paragraph shall survive any termination or expiration of this Agreement. No representative, agent, employee or other person is authorized to make any modifications to this disclaimer of warranty.
- TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
- DEFINITIONS; CONFLICTS
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the General Terms and Conditions Agreement. In the event there is a conflict between the provisions of this Agreement and the provisions of the General Terms and Conditions Agreement, the provisions of this Agreement shall control.