This Services Agreement ("Agreement") is effective as of the date ("Effective Date") accepted and executed by an authorized signatory of Orange Fox, a Nevada limited liability company, whose principal place of business is located at 1550 Utica Ave S, #460, St. Louis Park, Minnesota ("Company"), and Customer.
1.1 "Confidential Information" means, in respect of a party, all data and information of a confidential nature, including know-how and trade secrets, relating to the business, the affairs and any development projects or other products or services of such party. Confidential Information may be communicated orally, visually, in writing or in any other recorded or tangible form. Data and information shall be considered to be Confidential Information if (a) the relevant party has marked them as such, (b) the relevant party, orally or in writing, has advised the other party of their confidential nature, or (c) due to their character or nature, a reasonable person in a like position and under like circumstances would treat them as secret and confidential. Notwithstanding the foregoing limitation, all costs, documents, fees, recommendations, reports and services created, made or rendered under this Agreement by Company are strictly confidential.
1.2 "Costs" means all ordinary and customary expenses incurred by Company in the performance of the Services under this Agreement.
1.3 "Cost Estimate" means Company's good faith approximation of the costs of the resources needed to complete the Services upon behalf of Customer.
1.4 "Customer" means the Party identified as Customer on page (2) of this Agreement under the heading entitled, "Billing Information."
1.5 "Parties" means the named parties to this Agreement and their respective successors and assigns, and "Party" refers to any one of them, as the context requires.
1.6 "Services" means search engine optimization ("SEO"), keyword/phrase research, link building, competitive analysis, SEO strategy, penalty removal, link removal, reporting, promotional services and social media promotion.
1.7 "Service Fees" means the fees in the amounts and according to the monthly payments set forth in this Agreement.
2.1 Engagement. Subject to the terms and conditions of this Agreement, Company shall perform the Services identified in Section 1.6, above. The Services may be amended by the parties in a written format. Company will provide Customer with a written quotation of the Service Fees and estimates of the expenses associated with an amended scope of services and await Customer's pre-approval of such Service Fees and Cost Estimate before undertaking the amended scope of services.
2.2 Agreement to Perform Services. Company shall retain the power and authority to supervise and control performance of the Services by Company's employees, including the power to discipline, hire and fire Company's employees. Nothing in this Agreement shall be construed to (a) give either party the power to direct or control the daily activities of the other party, or (b) constitute the parties as employer and employee, franchisor and franchisee, licensor and licensee/sublicensor, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking. Company recognizes that the needs of Customer may change over the course of this Agreement and will accommodate such evolving needs with modifications to the definition of Services by mutual agreement based on an equitable shift in work effort.
2.3 Provision of Information and Personnel. Customer shall make available to Company such information as is reasonably required for Company to effectively fulfill and perform the Services. Such information includes, but is not limited to, monthly updates on performance of Services for the duration of this Agreement or any amendments thereto. Customer agrees to make its team available to Company according to the relevant areas of responsibility as needed for completing the Services. In the unlikely event that Customer cannot deliver such information to Company, Customer shall not hold Company liable for failure of execution and delivery of the Services.
2.4 Customer Obligations. Customer acknowledges and agrees that to receive the Services in a professional, timely manner from Company, Customer shall provide to Company (i) administrative/backend access to its website(s) for analysis of content and structure, (ii) permission to make changes for the purpose of optimization, and to communicate directly with any third parties, if necessary, (iii) unlimited access to existing website traffic statistics for analysis and tracking purposes and (iv) authorization to use Customer's pictures, logos, trademarks, website images, marketing collateral and website content for any use as deemed reasonably necessary by Company for SEO purposes. If Customer's website lacks sufficient textual content in Company's sole discretion for Company to perform SEO, Customer agrees to provide additional textual content in electronic format for the purpose of creating additional or richer web pages at Customer's own expense.
3.1 Service Fees. In consideration for the Services to be performed by Company hereunder, Customer shall pay Company in advance the Monthly Recurring Service Fee identified on Page One (1) of this Agreement, plus all Costs. The Service Fees and Costs shall be paid on the tenth (10th) day of each month unless otherwise provided for on the invoice.
3.2 Costs of Performing Services. All Costs reported by Company to Customer pursuant to this Agreement shall be reasonable and necessary costs and pre-approved by the Customer in written format. Customer shall reimburse Company for all pre-approved Costs.
3.3 Taxes. Each Party shall bear and pay all of its own taxes (including, without limitation, income taxes) arising under applicable laws in connection with the performance of this Agreement.
3.4 Billing; Payments; Suspension of Services. On the first business day of each month, Company shall invoice Customer for Service Fees and Costs. Customer shall pay the invoice in full by the tenth (10th) day of each month through Paypal Merchant Services. Company retains the right to suspend the provision of the Services until all past due charges are paid, and Customer shall be in default of this Agreement. Company shall not be liable for any delays, expenses or other disadvantages to Customer as a result of suspension of work due to unpaid invoices. All Service Fees and Costs shall be payable in U.S. Dollars.
3.5 Refund Policy. All Service Fees and Costs are non-refundable. Company will not issue refunds or credit card chargebacks on payments. Partial refunds may be given in special circumstances in the sole and absolute discretion of Company.
3.6 Attorney's Fees. If it becomes necessary for Company to enforce this Agreement through an attorney, collection agency, or directly through small claims court, Customer shall pay all attorney's fees, agency fees, court costs, and other collections costs, including without limitation, post-judgment costs for legal services at trial and appellate levels.
4.1 Term. This Agreement shall commence upon the Effective Date and shall remain effective until either party terminates it in a written format subject to the conditions of this Section 4.
4.2 Termination. After thirty (30) days Company may terminate this Agreement at any time for any reason immediately upon written notice. Customer may terminate this Agreement at any in time upon written notice provided that Customer is current on all invoices, including pre-approved Costs from previous billing cycles. This Agreement may be terminated at any time if any party: (a) becomes insolvent, files a petition in bankruptcy or makes an assignment for the benefit of its creditors; or (b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
4.3 Payment upon Expiration or Earlier Termination. Upon the expiration or termination of this Agreement as set forth above in Subsections 4.1 (Term) and 4.2 (Termination), above, Company shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the Service Fees due, or (c) hourly fees for work performed by Company or by Company's agents as of the date of termination, whichever is greater; and Customer shall pay Costs incurred by Company on Customer's behalf through and including the date of termination.
4.4 Return of Confidential Information. Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party's request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this agreement, exclusive of the Services, shall survive.
Company's unique approach to SEO shall be considered Confidential Information under this Agreement. All title, all rights and all intellectual property in and pertaining to Company's SEO strategy are owned by Company or its subsidiaries and shall remain the exclusive title, right and property of Company. This Agreement does not confer upon Customer any title, right or interest in or pertaining to Company's SEO strategy and shall not be construed by Customer as creating a license thereto. All costs, documents, fees, recommendations, reports and services created, made or rendered under this Agreement by Company are Confidential Information.
Company hereby represents and warrants that it has (a) qualified personnel, appropriate facilities and adequate resources to perform the Services in a timely and efficient manner, and (b) the necessary experience required to perform the Services in a competent and professional manner." EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES WHATSOEVER AND EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE SERVICES OR TO CUSTOMER. Company does not represent or warrant that the service is complete or free from error, and does not assume, and expressly disclaims, any liability to any person or entity for loss or damage caused by errors or omissions in the service, whether such errors or omissions result from negligence, accident, or other cause. Company does not guarantee ranking improvement.
A. By Customer. Customer agrees to indemnify, save and hold harmless Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Customer's responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Company shall promptly notify Customer in writing of any claim or suit; (a) Customer has sole control of the defense and all related settlement negotiations; and (b) Company provides Customer with commercially reasonable assistance, information and authority necessary to perform Customer's obligations under this section. Customer will reimburse the reasonable out-of-pocket expenses incurred by Company in providing such assistance.
B. By Company. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Company agrees to indemnify, save and hold harmless Customer from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Company's representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Customer provided that (a) Customer promptly notifies Company in writing of the claim; (b) Company shall have sole control of the defense and all related settlement negotiations; and (c) Customer shall provide Company with the assistance, information and authority necessary to perform Company's obligations under this section. Notwithstanding the foregoing, Company shall have no obligation to defend or otherwise indemnify Customer for any claim or adverse finding of fact arising out of or due to any unauthorized, improper or illegal content in possession of Customer or presented on Customer's website(s).
C. Limitation of Liability. THE SERVICES OF COMPANY ARE SOLD "AS IS." IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES ("COMPANY PARTIES"), TO CUSTOMER FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CUSTOMER'S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO ONE (1) WEEK NET PROFIT OF COMPANY. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY COMPANY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Customer acknowledges and agrees to the following risks associated with SEO and link building services:
A. All link building involves a degree of risk. Company has no control over the policies of search engines. If a search engine algorithm devalues, filters, or penalizes Customer's website(s) in any way due to link building to the Customer's website(s), Customer hereby releases and agrees to hold harmless, protect, and defend Company and its directors, officers, employees, agents and affiliates from any such consequences.
B. The Company has no relationship with or ownership interest in any computer software used to search data (as text or a database) for specified information. Company has no control or influence over the policies of any owner of search engines, such as Google, Yahoo!, or Microsoft, with respect to the type of websites and/or content that such search engines accept now or may accept in the future. The Customer's website(s) may be excluded from any directory or search engine at any time at the sole discretion of the owner of the search engine or directory. Occasionally, search engines will drop listings for no apparent or predictable reason.
C. Linking to "bad neighborhoods" or obtaining links from "link farms" can seriously damage all SEO efforts. The Company does not assume liability for the Customer's choice to link to or obtain a link from any particular website without prior consultation and written confirmation.
D. Company is not responsible for changes made to the Customer's website(s) by third parties which adversely affect the search engine rankings of the Customer's website(s).
E. Due to the competitiveness of some keywords and phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Company does not guarantee #1 positions or consistent top 10 positions for any particular keyword, phrase or search term.
Company is an independent contractor, not an employee of Customer or anyone affiliated with Customer. Company shall provide the Services under the general direction of Customer, but Company shall determine, in Company's sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Company and the Services delivered by Company shall not be deemed a work for hire as that term is defined under U.S. Copyright Law. All rights if any granted to Customer are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement. Neither party has the right, power or authority to enter into any contract or incur any obligation, debt or liability on behalf of the other party.
During the term of this Agreement, and for a period of twelve (12) months after expiration or termination of this Agreement, Customer agrees not to solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other kind of basis, any Company employee, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Customer agrees that Company shall be entitled to an agency commission to be the greater of, either (a) twenty-five percent (25%) of said person's starting salary with Customer, or (b) twenty-five percent (25%) of fees paid to said person if engaged by Customer as an independent contractor. In the event of (a) above, payment of the commission will be due within thirty (30) days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed Services for Customer. Company, in the event of nonpayment and in connection with this Section, shall be entitled to seek all remedies under law and equity.
11.1 Proprietary Marks. Neither party will use, or permit their respective employees, agents and subcontractors to use the trademarks, service marks, copyrighted material, logos, names, or any other proprietary designations of the other party, or the other party's affiliates, whether registered or unregistered, without such other party's prior written consent.
11.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes any prior understanding or agreement, oral or written, relating to the Service.
11.3 Severability. If any of the provisions of this Agreement becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
11.4 Waiver; Modifications. No waiver by either party of any breach by the other party of any of the provisions of this Agreement shall be deemed a waiver of any preceding or succeeding breach of the same or any other provision hereof. No such waiver shall be effective unless in writing and then only to the extent expressly set forth in writing. No modifications of this Agreement shall be effective unless in writing and signed by both parties.
11.5 Survival. Sections 1, 3, 4, 5, 6, 7 and 10 shall survive expiration or termination of this Agreement and shall continue in full force and effect with respect to payment obligations until fully satisfied and with respect to all other obligations forever.
11.6 Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. A signature on a copy of this Agreement received by either party by facsimile is binding upon the other party as an original. The parties shall treat a photocopy of such facsimile as a duplicate original. If this Agreement is executed in counterparts, no signatory hereto shall be bound until all parties hereto have duly executed or caused to be duly executed a counterpart of this Agreement. The individuals signing below represent that they are duly authorized to do so by and on behalf of the party for whom they are signing.
11.7 Governing Law and Forum; Waiver of Jury Trial. The interpretation and construction of this Agreement, and all matters relating hereto, shall be governed by the laws of Minnesota applicable to agreements executed and to be performed solely within such state and without reference to its choice of law provisions. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the Hennepin County District Courts of Minnesota and the Federal District Court in Minneapolis, Minnesota in any litigation arising out of this Agreement. Each party agrees that it shall not seek a jury trial in any proceeding based upon or arising out of or otherwise related to this Agreement or any of the other documents and instruments contemplated hereby and each party specifically waives any and all right to such jury trial.
11.8 Uncontrollable Events. No party shall be liable for any delay or failure in its performance of any of the acts required by this Agreement when such delay or failure arises for reasons beyond the reasonable control of such party. The time for performance of any act delayed by such causes shall be postponed for a period equal to the delay; provided, however, that the party so affected shall give prompt notice to the other party of such delay. The party so affected shall use its best efforts to avoid or remove such causes of nonperformance and to complete performance of the act delayed, whenever such causes are removed.
11.9 Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the prior written consent of Company, which consent shall not be unreasonably withheld.
11.10 Notices. Any notice or other communication required or permitted under this Agreement shall be sufficiently given if delivered in person or sent by one of the following methods: (a) registered U.S. mail, return receipt requested (postage prepaid); (2) certified U.S. mail, return receipt requested (postage prepaid); or (3) commercially recognized overnight service with tracking capabilities. All notices must be sent to the address as shown on the signature page of this Agreement, or to such other address or number as shall be furnished in writing by any such party.
11.11 Miscellaneous. Headings at the beginning of each section and subsection are solely for convenience and are not intended to be a part of this Agreement and shall have no effect upon the construction or interpretation of any part hereof. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine, and vice versa. This Agreement shall not be construed as if it had been prepared by either party, but rather as if it were jointly prepared. In the event that any action required by the parties hereto does not occur on a business day, the action shall be taken on the next succeeding business day thereafter. The parties hereto do not intend to confer any benefit hereunder on any person or entity other than the parties hereto and, therefore, there are no third party beneficiaries to this Agreement.