This Search Engine Optimization and Reporting Agreement (“Agreement”) is hereby entered into between PUSHTRAFFIC, INC. (hereinafter referred to as “Company”) and the party set forth in the related order form (“Customer” or “you”) incorporated herein by this reference (together with any subsequent order forms submitted by Customer, collectively the "Order Form") and applies to the purchase of all Search Engine Optimization and Reporting Services (hereinafter collectively referred to as “SEO Services”) ordered by Customer. PLEASE READ THIS AGREEMENT CAREFULLY. BY SIGNING UP FOR THE SEO SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY'S USAGE POLICY. YOUR USE OF THE SEO SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. 1. TERM AND TERMINATION. (a) This Agreement shall be effective as of the time frame set forth on the Order Form. (b) This Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. (c) This Agreement may be terminated by Company (i) immediately if Customer fails to pay any fees hereunder; (ii) if Customer fails to cooperate with Company or hinders Company’s ability to perform the SEO Services hereunder; (iii) at any time, without notice, if, in Company's sole and absolute discretion and/or judgment, Customer is in violation of any term or condition of the this Agreement and related agreements, Acceptable Use Policy (“AUP”), or Customer's use of the SEO Services disrupts or, in Company's sole and absolute discretion and/or judgment, could disrupt, Company's business operations; (iv) the SEO Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable; (v) immediately, if Company determines that Customer’s use of the SEO Services, Customer’s web site or Customer Content (as defined herein) violates any Company term or condition, including the AUP and/or (iv) as otherwise provided herein. (d) If Customer cancels this Agreement, upon proper notice to Company, prior to the end of the Term or any Term thereafter, Customer shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. 2. SEO SERVICES. Company agrees to provide Customer with SEO Services as described in the Order Form and this Agreement. Company is authorized to use the specific keywords and/or phases set forth in the Order Form for development, improving the ranking of, and/or positioning the contents of the Customer’s URL(s) (as set forth in the Order Form) in search engines and/or directories. SEO Services are intended to provide the Customer with preferential positioning in selected search engines and report results on an ongoing and timely basis. SEO Services include: Research keywords and phrases to select appropriate,
relevant search terms. The number of keywords is set forth in the Order
Form. Additional keyword purchases will require a separate Order Form.
3. FEES. Customer agrees to pay Company the fee(s) as stated in Order Form (“Fees”). The Fees must be received prior to the start of any SEO Services. 4. CUSTOMER RESPONSIBILITIES. For the purposes of providing the SEO Services, Customer agrees: (a) Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided through the Customer Web site. (b) Customer will cooperate fully with Company in connection with Company’s performance of the SEO Services. Customer must provide any equipment or software that may be necessary for Customer to use the Services. Delays in Customer’s performance of its obligations under this Agreement will extend the time for Company’s performance of its obligations that depend on Customer’s performance on a day for day basis. Customer will notify Company of any change in Customer’s mailing address, telephone, electronic mail or other contact information. (c) Customer assumes full responsibility for providing end users with any required disclosure or explanation of the various features of the Customer Web site and any goods or services described therein, as well as any rules, terms or conditions of use. (d) Because the Services permit Customer to electronically transmit or upload content directly to the Customer Web site, Customer shall be fully responsible for uploading all content to the Customer Web site and supplementing, modifying and updating the Customer Web site, including all back-ups. Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer Web site are compatible with the hardware and software used by Company to provide the Services, as the same may be changed by Company from time to time. Specifications for the hardware and software used by Company to provide the Services will be available on Company’s Web site. Customer shall periodically access Company’s Web site to determine if Company has made any changes thereto or to these terms and conditions. Company shall not be responsible for any damages to the Customer Content, the Customer Web site or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware and software used by Company to provide the Services. (e) Customer is solely responsible for making back-up copies of the Customer Web site and Customer Content. (f) To provide Company with file-transfer-protocol (“FTP”) access to its web sites for uploading new pages, and making changes for the purpose of SEO Services optimization or approval to go through a third party. (g) To authorize Company use of all Customer’s logos, trademarks, web site images, and related web materials for use in creating informational pages and any other uses as deemed necessary by Company for search engine positioning and optimization. (h) That if Customer’s web site(s) is light in textual content, Customer will provide additional relevant text content in electronic format for the purpose of creating additional web pages. Customer agrees to provide such additional content (for example, 200 to 500 words “articles” about each of their keyword phrases). 5. SEARCH ENGINES. Selected search engine submissions include: AOL 6. CUSTOMER ACKNOWLEDGEMENTS. Customer understands, acknowledges and agrees that: (a) Company has no control over the policies of search engines or directories with respect to the type of web sites and/or content that they accept now or may accept in the future. Customer’s web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity and Company has no control over such. Company will resubmit those pages that have been dropped from such indexes. (b) Some search engines or directories may take as long as two (2) to four (4) months, and in some cases longer, after submission to list Customer’s web site(s). (c) Occasionally, search engines or directories may stop accepting submissions for an indefinite period of time. (d) Occasionally, search engines or directories may drop listings for no apparent or predictable reason. Often a listing will “reappear” without any additional submissions. Should a listing not reappear, Company will re-submit the web site(s) based on the current policies of the search engine or directory in question. (e) Some search engines and directories offer expedited listing services for a fee. Company encourages Customer to take advantage of these expedited services. Customer is responsible for all expedited service fees unless otherwise noted in the Order Form. 7. WEB SITE CHANGES. Company is not responsible for changes made to Customer’s web site(s) by other parties that adversely affect the search engine or directory rankings of Customer’s web site(s). 8. ADDITIONAL SERVICES. Additional services not listed herein or in Order Form will be provided at a rate of $100.00 per hour. Company is not responsible for Customer’s overwriting SEO Services work to Customer’s web site(s). 9. INDEMNIFICATION. Customer shall indemnify and hold harmless Company (and its subsidiaries, affiliates, officers, agents, attorneys, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) incurred by Company as a result of any claim, judgment, or adjudication against Company related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Customer to Company (the "Customer Content"), or (b) a claim that Company's use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Company must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in, the defense and all related negotiations. 10. CUSTOMER REPRESENTATIONS. Customer hereby represents and warrants to Company, and agrees that during the Initial Term and any Term thereafter Customer will ensure that: (a) Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals, guild payments or other compensation of any kind to any person; (b) Customer’s use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated; (c) Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer Web site and will use the Customer Web site only for lawful purposes; (d) Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code. (e) Customer grants Company the right to reproduce, copy, use and distribute all and any portion of the Customer Content to the extent needed to provide and operate the SEO Services. (f) From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce. 11. CONFIDENTIALITY. The parties agree to hold each other's Proprietary or Confidential Information in strict confidence. "Proprietary or Confidential Information" shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other's Proprietary or Confidential Information available in any form to any third party or to use each other's Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party's proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Company and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date. 12. DISCLAIMER OF ALL OTHER WARRANTIES. COMPANY DOES NOT WARRANT THAT THE SEO SERVICES WILL MEET THE CUSTOMER’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, COMPANY PROVIDES ITS SERVICES "AS IS" AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS. 13. LIMITED LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THERE SHALL BE NO REFUNDS. COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES. 14. FORCE MAJEURE. Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event. 15. RELATIONSHIP OF PARTIES. Company, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Customer does not undertake by this Agreement, the Order Form or otherwise to perform any obligation of Company, whether by regulation or contract. In no way is Company to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding. 16. NOTICE AND PAYMENT. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the addresses listed in the Order Form mailed by certified, registered or express mail, return receipt requested or by Federal Express. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph. 17. JURISDICTION/DISPUTES. This Agreement shall be governed in accordance with the laws of the State of CALIFORNIA. All disputes under this Agreement shall be resolved by litigation in the courts of the State of CALIFORNIA including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it. 18. AGREEMENT BINDING ON SUCCESSORS. The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns. 19. ASSIGNABILITY. Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Company. Company reserves the right to assign subcontractors as needed to this project to ensure on-time completion. 20. WAIVER. No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement. 21. SEVERABILITY. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement. 22. INTEGRATION. This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement. 23. NO INFERENCE AGAINST AUTHOR. No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision. 24. MARKETING. Customer agrees that during the term of this Agreement Company may publicly refer to Customer, orally and in writing, as a customer of Company. Any other public reference to Customer by Company requires the written consent of Customer. 25. DISPUTES. Customer and Company agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Los Angeles County, CALIFORNIA and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of CALIFORNIA sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of CALIFORNIA or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court. 26. READ AND UNDERSTOOD. Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions. 27. DULY AUTHORIZED REPRESENTATIVE. Each Party warrants that their representative whose signature appears below is duly authorized by all necessary and appropriate corporate actions to execute this Agreement. |