This General Terms and Conditions and the Client’s referenced Insertion Order, Proposal, and Implementation Worksheet (collectively, the “Agreement”) set forth the entire agreement between Fenix Net Solutions and Advertiser, also referred to as Client (and, if applicable, Advertiser’s Agency) supersede any previous agreements or understandings between the parties with respect to their subject matter. In the event of any conflict between the terms set forth in the Insertion Order and the General Terms and Conditions, the terms set forth in the Insertion Order shall control.
The Agreement between Fenix Net Solutions (“Company”) and Client as indicated on Client’s Insertion Order is made on the day of the Client’s signed Insertion Order. Any proposal not accepted via an approved Insertion Order within thirty (30) days of proposal delivery is subject to Company revision.
In consideration of the mutual covenants set forth in this Agreement, Client and Company hereby agree as follows:
Company agrees to provide the services pursuant to the specifications outlined on Client’s Proposal, Insertion Order, and Implementation Worksheet. Any changes in specifications shall require a revised Insertion Order.
2. Delivery Dates and Milestones.
Company will use reasonable diligence in the completion of services and endeavor to deliver to Client all deliverables and milestones as defined on Client’s Implementation Worksheet. Client acknowledges, however, that delivery deadlines and other payment milestones listed on Client’s Insertion Order are estimates, and are not required delivery dates.
3. Property Rights.
Company will be retaining all documents, source code, keyword lists, and other assets employed or created for Client during the execution of this agreement. Client shall retain all of its intellectual property rights in any text, images, or other components it owns and delivers to Company for use in the services rendered under this agreement. Client will receive the output formats of Company’s work where applicable. The output is to be used only within the scope of the project as outlined in the Client’s Insertion Order.
Company is not responsible for retaining original source material and digital files supplied to a vendor, unless otherwise agreed upon in writing. In addition, Company is not responsible for archiving Client materials beyond six (6) months of the project’s completion. Client may be charged an Administrative Archive fee for any requests to retrieve said files, if they are still in Agency’s database.
Client agrees to designate in writing a Contact Person to whom all requests and approvals, if required, concerning the work and costs shall be submitted and approved. If no Contact Person is designated by Client, Company shall not be responsible for obtaining any such approvals. Approval delays may delay final date of completion and delivery.
For all of Company’s services under this Agreement, Client shall compensate Company, in cash, check, or credit card, pursuant to the terms outlined on Client’s Insertion Order. In the event Client fails to make any of the payments referenced in Client’s Insertion Order by the deadline set forth in Exhibit A, Company has the right, but is not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement, (2) remove equipment, software, services or resources owned by Company, whether leased to Client by Company or not and any Company personnel or staff from Client location(s), (3) bring legal action.
Client authorizes Company to purchase the hard deliverables identified and requested under this proposal, be they print, media, or otherwise for Client and/or its assigns and to obligate Client contractually or otherwise for payment of such procurement. Charges for all fees and hard costs represented on proposals (and the miscellaneous charges for costs such as FedEx, couriers, presentation materials, etc.) are considered approved with Client’s signature, or email approval. These costs are not estimated, but Client may ask for a “not to exceed” cost before approving the proposal. If no request is made, Client agrees to pay costs incurred. Client also has a right to request documentation of said costs before paying. This does not postpone Client’s obligation to pay all other invoice charges, as agreed upon under this proposal.
Once payment has been made to Company, Company assumes full financial responsibility for remitting payment to vendor in a timely manner. If, however, Client fails to remit payment to Company, then financial responsibility for payment to vendors is transferred to Client. This agreement shall remain in effect until such time that Client notifies the vendor that Client/Company relationship has been discontinued.
Insertion Orders may not reflect applicable sales tax that will be included on invoices.
Client and Company acknowledge and agree that the Specifications and all other documents and information related to the project (the “Confidential Information”) will constitute valuable trade secrets of Company. Client shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without Company’s prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.
7. Limited Warranty and Limitation on Damages
Company warrants that products and services provided will conform to the Specifications for a period of 30 days from the date of acceptance by Client. If products and services provided do not conform to the Specifications, Company shall be responsible to correct without unreasonable delay, at Company’s sole expense and without charge to Client, to bring products and services into conformance with the Specifications. This warranty shall be the exclusive warranty available to Client. Client waives any other warranty, expressed or implied. Client acknowledges that Company does not warrant that products and services provided will work on all platforms. Client acknowledges that Company will not be responsible for the results, productivity or any other measurable metric not specified in Client’s Insertion Order. Client waives any claim for damages, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to Company as set forth in Exhibit A and in Client’s Insertion Order.
Client agrees to make available to Company, for Company’s use in performing the services required by this Agreement, such items of hardware and software as Client and Company agree are reasonably necessary for such purpose. Client agrees to make available any access to services, hosting, ftp or other resources deemed necessary by Company to fulfill its obligations under this Agreement.
9. General Provisions
- 9.1 Entire Agreement.
This Agreement contains the entire Agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by both parties hereto.
- 9.2 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio. Exclusive jurisdiction and venue shall be in the Franklin County, Ohio Superior Court.
- 9.3 Binding Effect, Cancellation Policy and Renewal.
This Agreement shall be binding to the benefit of Client and Company and their respective successors and assigns, provided that Company may not assign any of their obligations under this Agreement without Client’s prior written consent. This Agreement is binding for the term shown on said Agreement, under Exhibit A and in Client’s Proposal. Client may not cancel Agreement during said term. Agreement renews on month to month basis after the conclusion of the Client’s contract terms and requires 30 day written notice to end services during month to month term.
- 9.4 Waiver.
The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
- 9.5 Good Faith.
Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.
- 9.6 No Right to Assign.
Client has no right to assign, sell, modify or otherwise alter this Agreement, except upon the express written advance approval of Company, which consent can be withheld for any reason.
- 9.7 Right to Remove Resources.
In the event Client fails to make any of the payments set forth on Exhibit A and in Client’s Insertion Order within the time prescribed in Exhibit A and in Client’s Implementation Worksheet, Company has the right to remove any resources under Company control until payment is paid in full, plus accrued late charges of 1.5% per month.
- 9.8 Indemnification.
Client warrants that everything it provides Company to employ in the production of the agreed-upon products and services as outlined in the Insertion Order is legally owned or licensed to Client. Client shall indemnify and hold Company harmless from any and all claims brought by any third party relating to any aspect of products and services provided, including, but without limitation, any and all demands, liabilities, losses, costs, and claims including attorney’s fees arising out of injury caused by Client’s products/services, material supplied by Client, copyright infringement, and defective products sold by Client. Client agrees to indemnify Company from responsibility for problems/disruptions caused by third-party services that Client may use such as merchant accounts, shopping carts, shipping, hosting services, real time credit card processing and other services that relate to the ownership and operation of SEO or multimedia project.
- Client shall indemnify and hold Company harmless from any and all claims brought by any third party relating to loss, cost, expense, and damages (including court costs and reasonable attorney’s fees) on account of any and all manner of claims, demands, actions and proceedings that may be instituted against Company on grounds alleging that Company violated any copyrights or proprietary right of any person, or that work produced by Company contains any matter that is libelous or obscene or scandalous, or invades any person’s right to privacy or other personal rights, except to the extent Company contributed to the matter. Client also agrees to hold Company harmless for any errors, oversights, omissions or other issues that may subsequently arise during the course of completion of this project. Client accepts responsibility for final approval of all materials produced, including accuracy of information, use of logos and copyrights, etc.
- 9.9 Use of Material for Promotional Purposes.
Client grants Company the right to use its work in producing products/services for promotional purposes and/or to cross-link it with other advertising developed by Company. Client grants Company the right to list, reference or otherwise identify Client as a client of Company in Company’s advertising and marketing.
- 9.10 No Responsibility for Loss.
Company will have no responsibility for any third-party disrupting, intruding or otherwise copying files in part or in whole on all or any part of the work performed. Company is not responsible for any down time, lost files, improper links or any other loss that may occur in the operation of web-related marketing conducted under this Agreement.
- 9.11 Right to Make Derivative Works.
Company will have the exclusive rights in making any derivative works from any of its work, practices, coding, programming or other work in regards to products/services completed in this Agreement.
- 9.12 Attorney’s Fees.
In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorney’s fees and costs, including expert witness fees.
- 9.13 Identification of Company.
Client agrees that Company identification may be annotated, and remain, within the code or on the Web Site as the authors. Client also agrees to put Company’s copyright notices on SEO and the relevant content therein.
- 9.14 Transfer of Rights.
In the event Company is unable to continue maintenance of SEO services, non-exclusive rights to SEO will be granted to Client. Transfer of Rights does not apply to non-transferable third-party licenses and proprietary Material owned by the Developers.
- 9.15 Domain Name.
Any domain name registered on Client’s behalf will be made in Client’s name for both the billing and administrative contacts. The technical contact is generally required to be the hosting ISP or Domain Registrar. Company will not register domain names in Company name. Client is responsible for renewing Client’s domain name.
10. SEO/SEM Services Provided
SEO/SEM services are intended to provide Client with preferential positioning in selected search engines and report results on an ongoing and timely basis. SEO/SEM services are provided to only those Clients for whom SEO/SEM was included on the approved Insertion Order. SEO/SEM services may include, but are not limited to:
10.1 Keyword Selection.
Company will provide a list of keywords and phrases relevant to Client’s desired search terms and specified on Client’s Implementation Worksheet.
10.2 Web Page Creation, Edits and Custom Programming.
Company will suggest edits for Client’s existing Web Pages to include various HTML tags, content, text or other elements as deemed necessary by Company in order to aid submissions to selected search engines and directories. Company may employ proprietary positioning techniques, coding and other resources, as it deems necessary to improve Client’s positioning. Company reserves the right to create specially coded Web Pages to prevent competitors from copying code or any resources employed by Company.
10.3 Software. Company will manage or maintain copies of licenses for any of the software packages or installations under this Agreement. All licenses for software installations will be turned over to Client upon completion of this Agreement.
10.4 Services. Company will create custom reports for traffic and positioning of Client’s Web Site, Web Pages and any additional Web Sites or custom Web Pages created by Company under this Agreement. Company will provide detailed reports as required by the Specifications and shall endeavor to provide the reports to Client in a timely manner. Client acknowledges that any reports provided by Company are to be considered estimates based on industry standard reporting software and techniques and shall never be construed as an exact counting of each and every submission.
Company will develop and maintain regular monitoring and reporting on search engine placement and SEO/SEM performance. Reports, as outlined on Client’s Insertion Order, will be provided to Client on a monthly and/or quarterly basis.
- Client acknowledges the following with respect to services:
- a) Company accepts no responsibility for policies of third-party search engines, directories or other Web Sites (“Third-party resources”) that Company may submit to with respect to the classification or type of content it accepts whether now or in the future. Client’s Web Site or content may be excluded or banned from any Third-party resource at any time. Client agrees not to hold Company responsible for any liability or actions taken by Third-party resources under this Agreement.
- b) Client acknowledges that the nature of many of the resources Company may employ under this Agreement are competitive in nature. Company does not guarantee #1 ranking positions, consistent positioning, “top 10 positions” or guaranteed placement for any particular keyword, phrase or search term. Client acknowledges that Company’s past performance is not indicative of any future results Client may experience.
- c) Client acknowledges that SEO/SEM submissions to search engines and directories can take an indefinite amount of time for inclusion, unless paid inclusion programs are employed. Each edit or change made to any resources employed by Company will repeat these inclusion times.
- d) Client acknowledges that any of the search engines, directories or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time.
- e) Client acknowledges that search engines may drop listings from its database for no apparent or predictable reason. Company shall re-submit resources to the search engine based on the current policies of the search engine in question and whether paid inclusion programs are being used.
- f) Company will endeavor to make every effort to keep Client informed of any changes that Company is made aware of that impact any of the SEO/SEM Services and the execution thereof under this Agreement. Client acknowledges that Company may not become aware of changes to Third-party resources, industry changes or any other changes that may or may not affect SEO/SEM services.
- g) Client acknowledges that some of the Third-party resources only offer paid inclusion programs that require a fee or continued maintenance or performance fees.
- h) Company reserves the exclusive right, for the duration of this Agreement, to approve or disapprove any design strategies, existing code or other techniques, whether requested by Client or presently employed by Client that are considered by Company to be detrimental to SEO/SEM and the execution of Company’s services under this Agreement.
Client represents and warrants that the person signing the Insertion Order has full authority on behalf of Client to enter into and execute this Agreement.
EXHIBIT A: PAYMENT TERMS
- 1. Client agrees to pay Company an initial set-up fee agreed upon in Client’s Insertion Order, according to the following terms:
- A. 100% of the price upon execution of the Agreement.
- B. Service will begin upon receipt of payment.
- 2. Client agrees to pay Company the monthly fee agreed upon in Client’s Insertion Order according to the following terms:
- A. 100% of the fee upon due on the first of every month.
- B. Fee is to be credited one month in advance for service rendered in Agreement.
- 3. Client agrees to pay Company fee and all expenses, as set forth above, within 15 days of invoice. All unpaid balances shall accrue interest at 1 ½% per month.
- 4. Contract length and terms are stated in Client’s Insertion Order. Agreement will renew on a month-to-month basis after the conclusion of the Client’s Insertion Order contract terms, as applicable. See Cancellation requirements under 9.2 Binding Effect, Cancellation Policy and Renewal
- 5. Exclusive Territory and Competition Keyword Bid identified as defined in Client’s Insertion Order.