Local Search Media, LLC SERVICES AGREEMENT
TERMS & CONDITIONS
The above Selected Services to be provided to the CLIENT by Local Search Media, LLC shall be described below:
1. AGENCY’s SEM services are intended to serve two main purposes: a) to provide the CLIENT with increased exposure in search engines, and b) to drive targeted online traffic to the site.
2. For the purposes of receiving professional SEM services, CLIENT agrees to provide the following:
a) Administrative/backend access to the website for analysis of content and structure.
b) Administrative/backend access to the account currently hosting the website.
c) Adminstrative/backend access to the domain (website address) registrar.
d) Permission to make changes for the purpose of optimization, and to communicate directly with any third parties, e.g., CLIENT’S web designer, if necessary.
e) Unlimited access to existing website traffic statistics for analysis and tracking purposes.
f) Authorization to use CLIENT pictures, logos, trademarks, web site images, pamphlets, content, etc., for any use as deemed necessary by AGENCY for search engine marketing and/or optimization purposes.
g) If CLIENT’S site is lacking in textual content, CLIENT will provide additional text content in electronic format for the purpose of creating additional or richer web pages. AGENCY can create site content at an additional cost to the CLIENT.
3. CLIENT must acknowledge the following with respect to SEM services:
a) All fees are non-refundable.
b) All fees, services, documents, recommendations, and reports are confidential.
c) AGENCY has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. The CLIENT’S website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory.
4. AGENCY is not responsible for changes made to the website by the CLIENT or by other parties that adversely affect the search engine rankings of the CLIENT’S website.
5. Additional Services not listed herein (such as managing pay-per click campaigns, copywriting, link baiting, etc.) will be provided for a fee of $90 per hour.
6. The CLIENT guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork provided to AGENCY for inclusion on the website are owned by the CLIENT, and/or that the CLIENT has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, indemnify, protect, and defend AGENCY and its subcontractors from any damages, liability or suit arising from the use of such elements.
7. Local Search Media, LLC is not responsible for the CLIENT overwriting website work to the CLIENT’S site. (e.g., CLIENT/webmaster uploading over work already provided/optimized). The CLIENT will be charged an additional fee for re- constructing content, based on the hourly rate of $90 per hour.
8. CLIENT acknowledges that AGENCY makes no warranty of performance to CLIENT and, in fact, expressly disclaims any such warranty. CLIENT represents that CLIENT has not relied upon any such warranty and assumes all risks concerning the functionality, performance or results of the SEO services. Except as expressly agreed to by the parties as part of this CONTRACT, neither AGENCY nor any agent of AGENCY makes any representations, warranties or guarantees to CLIENT of any kind, either expressed or implied (including, without limitation, any warranties of merchantability, fitness for a particular purpose, title, non-infringement or other warranties arising by usage of trade, course of dealing or course of performance), regarding the functionality, performance or results of the SEO services, any distribution sites, linked sites, any site AGENCY may create for CLIENT, or otherwise under or related to the CONTRACT.
9. As a material inducement to AGENCY’s willingness to enter into this CONTRACT and provide the marketing services, CLIENT hereby represents and warrants that:
a) it is authorized to do business in all jurisdictions, including the State of Florida where the results of the services of AGENCY will be utilized or presented to the public and is currently doing business under the name given above and/or such other name(s) that the CLIENT provided;
b) All of CLIENT’S information, including the information contained in the CLIENT website(s) is true and correct;
c) CLIENT has all necessary right, title or interest to use all of CLIENT’S information, including any trademarks or trade names included therewith, as keywords and/or search terms for the purpose of internet search-based advertising;
d) CLIENT either owns all rights, title and interest in and to any trademarks or trade names included in the CLIENT’s information or CLIENT is fully authorized by the trademark owner to grant AGENCY the rights set forth herein;
e) CLIENT acknowledges that AGENCY has full permission to use CLIENT’S name and logo on AGENCY website for marketing purposes; and
f) CLIENT grants AGENCY full permission to share ranking information and traffic reports with other potential clients of AGENCY for sales purposes. AGENCY will not share confidential information such as leads acquired and other sensitive information that can negatively affect CLIENT’S reputation.
10. CLIENT represents and warrants that either:
a) any element, whether of a textual, graphic, photographic, artistic, audio, video or other nature and/or a combination of such elements in either a raw or edited form (such element(s) and/or combinations being referred to hereafter collectively and individually as the “Work”) which has been provided on behalf of the CLIENT to AGENCY for SEO services and/or distributed by or on behalf of AGENCY (the “Primary Service(s)”) is described below (and on Exhibit “B” hereto if necessary, with examples of the Work included where applicable) in sufficient detail to make the entirety of the Work easily identifiable by AGENCY;
b) No such Work has been provided by CLIENT and CLIENT hereby disclaims any interest, right or title to any element which may appear by reason of AGENCY’s services.
To the extent that any Work was provided, CLIENT represents and warrants that: (1) CLIENT is the sole owner of any copyright, trademark or other intellectual property right or interest which may exist in the Work; and/or, (2) CLIENT has full power and authority, including any necessary intellectual property permissions and licenses, to grant the rights granted AGENCY hereunder with respect to the Work; and, neither the licenses envisioned herein nor use of the Work as permitted hereunder will in any way constitute an infringement or other violation of any trademark, copyright or other intellectual property right of any third party.
CLIENT represents and warrants that all persons depicted in the Work, including any persons in AGENCY – Generated Element, consent to the taking of and use of their images, names, likenesses and any endorsements attributed to those persons and CLIENT agrees to defend and hold AGENCY harmless from any claims or allegations to the contrary, as well as any damages, costs, fees, etc. which might arise in connection with such claims or allegations.
11. All form fills will be sent to an AGENCY database, and they will be forwarded to CLIENT’S account. If payment is not made by 5:00 p.m. on the 30th day thereafter, AGENCY reserves the right to block access to the lead account until payment is made.
12. By signing where indicated herein below, the undersigned represents and warrants that the undersigned is authorized to, and does hereby, bind the CLIENT to all of the terms hereof. For its part, CLIENT acknowledges, agrees, represents and warrants that: a) all information provided herein is true and accurate as of the date hereof: b) the CLIENT is authorized to display the requested business, product or service; c) CLIENT has reviewed the provisions hereof and has agreed to be bound thereby; and d) the representations, warranties, and commitments made herein are a material inducement for AGENCY’s willingness to provide the SEO services as requested by CLIENT.
13. AGENCY will not, during or subsequent to the term of this Agreement, use CLIENT’S Confidential Information for any purpose whatsoever other than the performance of the Services on behalf of CLIENT or disclose CLIENT’S Confidential Information to any third party, without the advanced written authorization of the CLIENT. AGENCY further agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information including, but not limited to, limiting access to such information to individuals within its organization that have a bona fide need to know of such information, having each employee of AGENCY, if any, with access to any Confidential Information execute a nondisclosure agreement containing provisions and restrictions substantially similar to those contained in this Agreement.
14. AGENCY agrees that during and subsequent to the term of this Agreement any oral or written confidential information including, but not limited to, all source code developed for CLIENT, information related to data, figures, sales figures, projections, estimates, client lists, cooperative agreements, inventions, trade or other secrets or any other information related to or arising from this affiliation shall be considered and kept as private and privileged information of the CLIENT and will not be divulged to, used by or sold to any firm, individual, institution or other entity.
15. AGENCY shall be permitted to make press releases or disclose to other parties, in any marketing or advertising material or any other means of communication, the existence of the relationship between CLIENT and AGENCY or the existence or any terms of conditions of this Agreement without prior written authorization from the CLIENT, which may be withheld for any reason.
16. For purposes of this Agreement, the term “Confidential Information” means and includes: any and all proprietary information of any nature or kind, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, clients, client lists, markets, software, developments, inventions, processes, formulas. technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed by CLIENT either directly or indirectly in writing or orally. Confidential Information does not include information which (i) is known to AGENCY at the time of disclosure to AGENCY by CLIENT as evidenced by written records of AGENCY, (ii) has become publicly known and made generally available through no wrongful act of AGENCY or (iii) has been rightfully received by AGENCY from a third party who is authorized to make such disclosure.
17. Upon the termination or expiration of this Agreement, or upon CLIENT’S earlier request, AGENCY will deliver to CLIENT all of CLIENT’S property or Confidential Information in tangible form that AGENCY may have in AGENCY’s possession or control.
18. Injunctive Relief may be provided to the Parties, including disclosure of any Confidential information, or disclosure of other information which, by law, must remain confidential, will give rise to irreparable injury to the other Party or the owner of such information, inadequately compensable in damages. Accordingly, the non-disclosing Party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. The Parties acknowledge and agree that the covenants contained herein are necessary for the protection of legitimate business interests of the other Party and are reasonable in scope and content.
19. AGENCY shall observe all Compliance Laws and comply with all present and future laws, ordinances, orders, rules, and regulations of all governmental or other agencies, departments, authorities, boards, or commission having jurisdiction over or related to this Agreement and the use of any information obtained as a result thereof.
20. AGENCY will defend, indemnify, save and hold harmless CLIENT and the officers, directors, agents, affiliates, distributors, franchisees and employees of CLIENT from any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ legal fees (“Liabilities”), resulting from the AGENCY’s material breach or alleged material breach of any covenant, agreement, representation, or warranty of this Agreement.
TERM AND TERMINATION
21. This Agreement shall commence on the effective date hereof and shall remain in effect until the earlier of the completion of all services called for hereunder to be performed by the AGENCY, or the earlier termination of this Agreement as provided.
22. This Agreement may be terminated by the CLIENT or AGENCY, with or without cause, at the end of 12 month agreement by giving 30 days written or electronic notice of such termination. During such 30 day period, AGENCY must continue to meet all obligations incurred under this Agreement.
23. Thereafter, this agreement will continue in effect with respect to the online solutions program on a month to month basis. CLIENT shall give written cancellation notice to AGENCY required by this agreement by certified mail, return receipt requested, reputable overnight courier or hand delivery.
24. Upon the effective date of any termination of this Agreement, all legal obligation, rights and duties arising out of this Agreement shall terminate except that: a) the Confidentiality Restrictions, Ownership of Proprietary Rights Provisions, Indemnification, and Independent CONTRACT or provisions of this Agreement shall continue to apply and shall survive the termination of this Agreement as ongoing covenants between the parties; b) AGENCY shall have the continuing obligation to return to the CLIENT all tangible and intangible property of the CLIENT and all versions of any Proprietary Products of the CLIENT or developed for the CLIENT during the effectiveness of this Agreement; and c) AGENCY shall have the ongoing duty and obligation to confirm in writing and take all reasonable steps to secure proprietary right in the Proprietary Products developed pursuant to this Agreement in the name and exclusive ownership of the CLIENT.
25. Any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and shall deemed to be delivered if transmitted via Email at the Email addresses listed below. Addresses and Email addresses for such notices shall be:
AGENCY: Local Search Media
Local Search Media, LLC
1101 Brickell Ave
Miami, FL 33131
26. The Governing Law and Jurisdiction of this Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the state of FLORIDA. Each Party consents to the exclusive jurisdiction of the federal and state courts located in FLORIDA, in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief for breach or default under this Agreement or otherwise arising under or by reason of this Agreement.
27. This entire Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and supersedes all prior discussions or agreements between them, including without limitation the License Agreement. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by the Parties.
28. Except as hereinafter provided, neither AGENCY nor CLIENT shall have the right to assign this Agreement without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld. CLIENT shall have the right to assign this Agreement in connection with a merger of CLIENT into or with any other entity or a sale of all or substantial assets of CLIENT. Any purported assignment not in accordance with this Article 7.4 shall be void and not merely voidable. When assigned as permitted above, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties hereto.
29. Counterparts to this Agreement may be executed in one or more counterparts, each of which will be deemed an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. Further, each party agrees to accept telefax signature pages as originals.
ADDITIONAL TERMS AND CONDITIONS
30. By accepting AGENCY’s Terms of Service electronically or in writing, and/or by using our services, including but not limited to, submission of content to the SEOs team, payment or authorization of payment, CLIENT agrees to be bound by the following terms and conditions. The CLIENT also agrees that CLIENT’S electronic acceptance of these terms of service shall have the same force and effect as if CLIENT had agreed to these terms of service in writing.
31. Please read this agreement carefully. By ordering one of our services, you are agreeing to be bound by the terms of this agreement and all terms and conditions incorporated by reference in this agreement. Your use of the services constitutes acceptance of this agreement.
33. You agree that you are responsible for your own communications and for any consequences thereof. Your use of the Service is subject to your acceptance of and compliance with the Agreement. You agree that you will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence. You shall not, shall not agree to, and shall not authorize or encourage any third party to: a) use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as reasonably determined by ; b) upload, transmit or otherwise distribute content that infringes upon another party’s intellectual property rights or other proprietary, contractual or fiduciary rights or obligations; c) prevent others from using the Service; d) use the Service for any fraudulent or inappropriate purpose; or e) act in any way that violates the Program Policies, as may be revised from time to time. Violation of any of the foregoing may result in immediate termination of this Agreement.
34. AGENCY Services takes no responsibility for third party content (including, without limitation, any viruses or other disabling features), nor does AGENCY or its Service have any obligation to monitor such third party content AGENCY, reserves the right at all times to remove or refuse to distribute any content on the Service, such as content which violates the terms of this Agreement. AGENCY also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam), (d) respond to user support requests, or (e) protect the rights, property or safety of its users and the public. AGENCY will not be responsible or liable for the exercise or non- exercise of its rights under this Agreement.
35. AGENCY and the Service does not claim any ownership in any of the content, including any text, data, information, images, photographs, music, sound, video, or other material, that you upload, transmit or store in your AGENCY account. We will not use any of your content for any purpose except to provide you with the Service.
36. You represent and warrant that (a) all of the information provided by you to AGENCY participate in the Services is correct and current; and (b) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder. You represent and warrant that you will not post articles, newsletters, websites, blogs or other information which directly conflicts with the strategy and/or scope of work prescribed by us according to the search engine algorithm. AGENCY, moreover, does not guarantee or warrant that it will be successful in effecting removal or alteration, if such service is to be performed, of any Internet content about the CLIENT or the Named Party he or she has designated as the subject of the searches to be undertaken by the Company.
38. All fees for the services shall be in accordance with the fee schedule then in effect, the terms of which are incorporated herein by reference. Fees will become due as an anniversary billing mode (daily) or monthly anniversary mode. AGENCY reserves the right to charge, bill or invoice your account up to 21 days prior to the due date. All late payments are subject to a 10% late fee or a 1.5% late fee per month whichever is higher, and any unpaid balances will accrue interest at a rate of 18% per annum.
39. If the CLIENT either cancels the check or submits a check which is returned for any reason AGENCY will secure the following remedies: a) a minimum service fee of $100.00 will become immediately due and payable. b) If an alternate payment has not been made with 24 hours AGENCY will assess a collection fee of $200.c) Each check cancellation or NSF will incur the above referenced expenses. d) If the CLIENT does not pay the fees listed above then AGENCY will file with the proper authority and/or take legal action against the CLIENT. The CLIENT agrees to pay all legal fees associated with the collection of this debt.
40. The CLIENT specifically agrees not to engage in libel or slander regarding AGENCY, including but not limited to publishing, or causing to be published, derogatory comments about AGENCY in any format, including but not limited to, print, newspaper, television, radio or on internet complaint sites, blogs or other public internet forums. AGENCY shall be entitled to litigate this matter, and obtain the money damages together with injunctive and punitive relief. The prevailing party to that litigation shall be entitled to an award of attorney’s fees.
41. You agree to hold harmless and indemnify AGENCY and its subsidiaries, affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to your use of the Service, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, AGENCY will provide you with written notice of such claim, suit or action. You agree to provide the information required by the service, and understand that the better the information you provide the better results you’ll see. You authorize us to use your information to search the Internet and the using any tool available. You authorize us to use the information you provide to create and publish web content. You grant us the right to publish any or all of the content you provide on any website we deem fit for the purposes of any service. You authorize us to modify any content as we see fit to provide the service. You warrant that you have the right to distribute the content you provide us, and to indemnify us against any damages arising from the use of the content you provide, whether due to copyright infringement or other reason. You authorize us to act on your behalf in creating accounts on other sites in your name. You specifically release and hold us harmless for all damages caused as a result of any service, including any damages resulting from publication of content you provide us, disclosure of your relationship with AGENCY, or any other cause. The CLIENT waives all tort claims, strict liability claims and any and all other legal and equitable claims to the extent permitted by law against AGENCY, its subsidiaries, affiliates, officers, employees and agents. The relationship between the parties is contractual in nature only. The CLIENT waives any tort claims that arise by act, or omission.
44. AGENCY services, and all materials, information, products and services included in AGENCY’s services are provided “as is,” with no warranties whatsoever. AGENCY and its licensors expressly disclaim to the fullest extent permitted by law all express, implied, and statutory warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. AGENCY, and its licensors disclaim any warranties regarding the security, reliability, timeliness, and performance of the AGENCY services. AGENCY and its licensors disclaim, any warranties for any information or advice obtained through the AGENCY services. AGENCY and its licensors disclaim any warranties for services or goods received through or advertised on the AGENCY services or received through any links provided by the AGENCY services, as well as for any information or advice received through any links provided in AGENCY services.
45. You understand and agree that you download or otherwise obtain material or data through the use of the AGENCY services at your own discretion and risk and that you will be solely responsible for any damages that results from such material or data.
46. Under no circumstances shall AGENCY or its licensors be liable to any user on account of that user’s use or misuse of or reliance on the AGENCY services. Arising from any claim relating to this agreement or the subject matter hereof such limitation of liability shall apply to prevent recovery of direct, indirect, incidental, consequential, special, exemplary, and punitive damages whether such claim is based on warranty, contract, tort (including negligence), or otherwise, (even if AGENCY or its licensors have been advised of the possibility of such damages). Such limitation of liability shall apply whether the damages arise from use or misuse of and reliance on the AGENCY services, from inability to use AGENCY services, or from the interruption, suspension, or termination of the AGENCY services (including such damages incurred by third parties). This limitation shall also apply with respect to damages incurred by reason of other services or goods received through or advertised on the AGENCY services or received through any links provided in the AGENCY services, as well as by reason of any information or advice received through or advertised on the AGENCY services or received through any links provided in the AGENCY services. This limitation shall also apply, without limitation, to the costs of procurement of substitute goods or services, lost profits, or lost data. Such limitation shall further apply with respect to the performance or non-performance of the AGENCY services or any information or merchandise that appears on, or is linked or related in any way to, the AGENCY services. Such limitation shall apply notwithstanding any failure of essential purpose of any limited remedy and to the fullest extent permitted by law.
47. Without limiting the foregoing, under no circumstances shall AGENCY or its licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning. Further, you agree to AGENCY against any loss or damage caused AGENCY resulting from fraudulent or malicious representations of identity made to AGENCY.
48. Violating AGENCY’s Acceptable Use Policy may result in temporary or permanent limitation of a CLIENT’S account. The services provided by AGENCY may change at any time. The methods used to provide services may change at any time. The pricing of services may change at any time. Malfunctions are to be expected in technology driven products. By accepting these terms you represent that you are aware that AGENCY is a technology driven service and accept any problems related to such a service.
49. These Terms of Service constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Terms of Service will be effective only if in writing and signed by AGENCY.
50. Accepting the electronic copy of the work order/work request/CONTRACT, submitting content through any Active Collaboration System, making payment, or submitting information or documents to AGENCY so that AGENCY may perform services for the CLIENT, the same shall constitute an electronic signature as defined by Florida ’s Uniform Electronic Transactions Act.
51. Collection Expense: In the event AGENCY refers CLIENT account to a collection agency or attorney due to a non-payment, CLIENT will be liable for all of AGENCY reasonable costs and expenses incurred in connection with CLIENT non-payment, including, without limitation, court costs, and reasonable attorneys’ fees up to 25% of the amount of the unpaid balance. ( plus interest accrued thereon ).