Terms and Conditions
These terms and conditions (herein after) shall be applicable to all orders entered into by and between Effiqs LLC (“Provider”) and the Customer. Provider and Customer are each referred to as a (“Party”) and collectively as the (“Parties”). In consideration of the mutual covenants set forth herein, the sufficiency of which is hereby acknowledged by each Party, Provider and Customer hereby agree as follows:
Subject to all terms and conditions set forth herein, Provider shall provide the marketing consultancy services, strategies, campaigns, advertising, graphic design, web design, copywriting, search engine optimization, marketing automation and email marketing (collectively, the “Services”). Customer acknowledges and agrees that Customer shall only receive the Services set forth and purchased by Customer. Customer agrees and acknowledges that the Services may be provided to Customer via Provider’s third-party vendors and/or partners. Customer acknowledges and agrees that the Services may be dependent on timely receipt by Provider of certain information, content, and materials from Customer. Provider will determine the method, details, and means of performing the Services. Customer is responsible for implementing any recommendations, HTML code, server-side code, sitemaps, and/or content, as applicable, provided by Provider in connection with the Services. Such recommendation by Provider and implementation by Customer may involve modifying certain web pages, making configuration changes to the web server, site navigation or content management system.
Customer hereby authorizes Provider to act on behalf of Customer in connection with provision of the Services to Customer under the Agreement. Such authority includes, but is not limited to, ordering the Services from third parties. For the avoidance of doubt, Customer grants Provider all rights necessary for Provider to facilitate the provision of the Services to Customer hereunder. Customer shall direct communications regarding the Services only to Provider, unless instructed otherwise by Customer. Customer agrees to comply with all reasonable requests of Provider necessary for the performance of the Services.
3. THIRD PARTY SERVICE
Customer acknowledges that Provider cannot accept any responsibility or liability for the performance, policies or actions of third-party digital marketing networks including, but not limited to, search engines, display networks, social networks, or directories. Customer acknowledges that third party digital marketing networks may drop listings, suspend accounts, impose additional requirements or terms and conditions, or undertake other actions, which may impact the Services, at their discretion. Customer agrees that Provider shall not be responsible or liable for any of the foregoing.
Customer acknowledges that Provider cannot guarantee specific delivery or positioning of any creative/advertising placements in connection with the Services.
Provider may require access to, and Customer agrees to provide such access or otherwise make available, any systems, hardware, services, hosting, FTP software or similarly functioning software or content management systems, or other resources deemed necessary by Provider to fulfill its obligations under this Agreement.
Customer agrees to indemnify Provider from all claims related to revenue loss and/or any other type of damage occasioned by a bad campaign performance or disappointing results.
Customer agrees to indemnify Provider from all claims related to expenditure on third party advertising platforms such as Google, Facebook or LinkedIn.
7. PAYMENT TERMS
All payments are net 30 days from the date of invoice. Customers on post-pay or credit accounts who exceed a 30-day balance may be moved to a secured account requiring an upfront payment. In the event Customer fails to make any payments in a timely manner, the Provider has the right, but is not obligated to, terminate the Agreement with written notice. Such remedy is in addition to any other remedies which may be available to Provider under the Agreement or under applicable law. Late payments will be charged a late fee equal to the lesser of 1.5% or the maximum interest rate allowable by law multiplied by past due amount. In addition to the late payment penalty set forth above, in the event Customer fails to make any of the payments in accordance with the Agreement, Provider may suspend the Services until payment is paid in full. In addition to any outstanding balance, Customer shall be liable for all collection agency fees and reasonable attorney’s fees payable by Provider in connection with enforcing Customer’s performance of its payment obligations set forth in this Agreement. Customer shall be responsible for all taxes due in connection with the transactions contemplated hereunder, except for taxes based on Provider’s income.
Provider shall be entitled to reimbursement for reasonable brokerage fees, customs fees and other business expenses incurred by Provider in the performance of this Agreement and Customer shall have the right to require Provider to supply reasonable documentation supporting the incurrence of such expenses.
9. TERM OF AGREEMENT
The Agreement shall remain in effect until the services are complete.
Either party may terminate this Agreement by providing the other party with written notice at least thirty (30) days prior to the end of the Term. The Agreement may be terminated by a Party if the other Party materially breaches the Agreement and does not cure such breach within thirty (30) days following written notice thereof from the non-breaching Party. In the event of a breach of the Agreement by Customer, Services may be suspended by Provider until the breach of the Agreement is cured.
The Agreement or a particular Service may be terminated by Provider upon: (i) termination or expiration of the relationship between Provider and the vendor/partner that enables the Services; or (ii) thirty (30) days advance written notice. Upon termination of this Agreement, Provider may remove any tracking codes and the like installed by Provider in connection with the Services. The provisions of the Agreement, which expressly or by implication are intended to survive termination or expiration, will survive, and continue to bind the Parties.
11. USAGE AND OWNERSHIP
The rights and licenses granted hereunder to Customer are non-transferrable. Customer will not, and will not permit any third party to, use, or disclose the Services, unless expressly permitted under this Agreement. Without limitation of the foregoing, Customer will not reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services. Provider, its partners and/or vendors exclusively retain all right, title, and interest in and to the Services, in all forms, and all copies, modifications, edits, improvements, additions, and derivative works prepared from or relating to the same, including all worldwide rights to patents, copyrights, trademarks, trade secrets or other intellectual property rights in or relating to the same. The Services shall not constitute (“work for hire”). Customer is not acquiring any right, title, or interest of any nature whatsoever in any Services except the right to use the Services as contemplated in this Agreement. Provider will have the exclusive rights in making any derivative works from the Services or its related work.
Customer owns, or is authorized to use, any keywords, combination of keywords, Customer advertising materials, artwork, links, domain names (URLs), websites, data and content provided by Customer to Provider, including Customer’s trademarks, service marks, names and logos and the content of any creative material created by Provider that Customer approves (collectively, “Content”). Customer hereby grants to Provider and its Affiliates a perpetual, non-exclusive, royalty-free, irrevocable right and license (i) to use, copy, perform, display, distribute and modify the Content in any manner or medium, now known or hereafter developed, for Provider to perform the Services, and (ii) to prepare statistical analyses which Provider and its Affiliates may use to improve their services and may combine with other similar data from other customers and disseminate and otherwise use in aggregate form.
12. USE OF MATERIAL FOR SERVICES AND PROMOTIONAL PURPOSES
Customer grants Provider the right to (i) use any Content provided by Customer in connection with the Services and/or (ii) cross-link (i.e., by placing a tag on Customer’s website) any such Content with other advertising developed by Provider. Customer grants Provider the right to list, reference or otherwise identify Customer as a client of Provider in Provider’s advertising and marketing. In connection with the provision of certain Services, Customer agrees and acknowledges that Provider identification may be annotated and remain within the code or on Customer’s web site, identifying Provider as the author and/or service provider. Customer also agrees to put Provider’s copyright notices on any reports generated in connection with the Services and the relevant content therein.
(“Confidential Information”) means any confidential and/or proprietary information provided by Provider to Customer under this Agreement, including without limitation, any information relating to Provider’s products, Services, costs, prices, vendors, partners, finances, marketing plans, business opportunities, personnel, research, development or know-how; that is (i) clearly designated by Provider as confidential in writing on the materials at the time of disclosure, (ii) if disclosed orally, designated as confidential at the time of disclosure and reduced to writing and designated as confidential in writing within thirty (30) days after oral disclosure, or (iii) given the nature of the information and the circumstances of disclosure, a reasonable person would deem to be confidential. Confidential Information includes, but is not limited to, the Services and all associated intellectual property and know-how. Customer will not use any portion of the Confidential Information provided by Provider hereunder for any purpose other than the purposes contemplated by the Agreement. Customer shall protect all Confidential Information received from Provider with the same degree of care with which it protects its own Confidential Information, which in no event shall be less than reasonable care. Customer shall promptly notify Provider of any actual or suspected misuse or unauthorized disclosure of the Provider’s Confidential Information. Customer shall not disclose Provider’s Confidential Information to any person except as authorized in writing by Provider. Upon termination of this Agreement and/or upon request by Provider, Customer shall promptly return to Provider all of Provider’s Confidential Information in its possession (including all copies and extracts thereof). In connection with a breach of the confidentiality provisions herein, Provider shall be entitled to seek injunctive relief, in any court having proper jurisdiction, in addition to any other remedy that the Provider may have.
14. CUSTOMER REPRESENTATIONS AND WARRANTIES
15. LIMITED WARRANTY
If the Services are not provided by Provider in accordance with the description of Services herein, Provider shall re-perform the Services without unreasonable delay, at Provider’s sole expense and without charge to Customer, to bring the Services into conformance with the description of Services herein. This warranty shall be the exclusive warranty available to Customer. Customer waives any other warranty, express or implied. Customer acknowledges that Provider does not warrant that the Services will work on all platforms or in every circumstance. Customer acknowledges and agrees that Provider will not be responsible for the results, productivity, or any other measurable metric of the Services. EXCEPT AS EXPRESSLY PROVIDED HEREIN IN THIS SECTION, PROVIDER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO ANY SERVICE OR ITEM PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, TITLE, DESIGN, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM CONDUCT, COURSE OF DEALING, CUSTOM, OR USAGE IN TRADE.
Customer will defend, indemnify and hold harmless Provider, its vendors, partners, parents, subsidiaries, affiliates and their officers, directors, employees and agents and their successors and assigns (collectively, (“Indemnitees”) against any and all claims, demands, losses, costs or liability (including without limitation reimbursement for reasonable attorneys’ fees and disbursements) which Indemnitees, may incur as a result of, arising from or relating to: (a) any breach of the Agreement by Customer or any of its officers, directors, employees and agents; (b) use of the Services and/or Content; (c) infringement by the Content of a patent, copyright, trademark right or other intellectual property right of a third party or misappropriation of any third party trade secret; (d) any violation of any law by Customer in connection with the transactions contemplated by the Agreement; (e) Customer’s products/services, including, but not limited to, defective products sold via the Services; (f) problems/disruptions with the Services caused by third-party services that Customer may use, such as merchant accounts, shopping carts, shipping, hosting services, real-time credit card processing and other services that relate to or impact Customer’s use of the Services; (g) use of digital tracking measures in connection with any applicable Services, including but not limited to, conversion tracking, call tracking, reverse proxies and analytic applications, (h) the web pages linked to from Customer website or advertisements and the content therein; (i) the products or services promoted or offered in, or the web pages linked to, from Customer website or advertisements; and (j) the collection and use by Customer of personally identifiable information collected from users of Customer website or advertisements.
17. LIMITATIONS OF LIABILITY
IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SAVINGS, LOST OR DESTROYED DATA, LOST REVENUES, LOST OPPORTUNITY COSTS, DIMINISHED BRAND OR ANY OTHER ECONOMIC LOSS, OF ANY TYPE OR NATURE, OR FOR EVENTS OR CIRCUMSTANCES BEYOND PROVIDER’S CONTROL, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER OCCASIONAL SHORT-TERM INTERRUPTIONS OF SERVICE NOR INTERRUPTIONS OF SERVICE RESULTING FROM EVENTS OR CIRCUMSTANCES BEYOND PROVIDER’S REASONABLE CONTROL SHALL BE CAUSE FOR ANY LIABILITY OR CLAIM AGAINST PROVIDER HEREUNDER, NOR SHALL ANY SUCH OCCASION RENDER PROVIDER IN DEFAULT UNDER THIS AGREEMENT. PROVIDER’S CUMULATIVE, AGGREGATE LIABILITY IN CONNECTION WITH OR ARISING IN ANY WAY OR IN ANY DEGREE FROM THIS AGREEMENT, OR OTHERWISE FROM THE ACTS OR OMISSIONS OF PROVIDER UNDER ANY AND ALL LEGAL THEORIES WILL NOT EXCEED THE LESSER OF (I) $50,000 OR (II) THE TOTAL AMOUNT PAID BY CUSTOMER TO PROVIDER IN THE 12 MONTHS BEFORE SUCH CLAIM AROSE. CUSTOMER HEREBY ACKNOWLEDGES THAT THE REMEDIES SET FORTH ABOVE ARE REASONABLE AND WILL NOT FAIL OF THEIR ESSENTIAL PURPOSE.
18. FORCE MAJEURE
No failure, delay, or default in performance of any obligation under this Agreement (other than payment obligations) will constitute a breach of this Agreement if it is caused by strike, fire, shortage of materials, act of a public authority, civil disorder, riot, work stoppage, labor strife, cessation of third party supplies or services, vandalism, war, severe weather, natural disaster or other act of God; terrorism; or other cause that is beyond the reasonable control of the Party otherwise chargeable, for so long as such cause continues and for a reasonable period of time thereafter.