SOURCE WAVE SOFTWARE TERMS OF SERVICE SEARCH ENGINE OPTIMIZATION (SEO)
PLEASE READ CAREFULLY BEFORE USING THE SERVICE: These Terms of Service are a legal agreement by and between Alex Becker d/b/a Source Wave Software, a Texas sole proprietorship 2303 Clark Street, Dallas, Texas 75204, (hereinafter the "Consultant,") and the Client, the user of the Services.
BY CLICKING "I AGREE" OR OTHERWISE TAKING ANY STEP TO USE THE SERVICE(S) OFFERED BY CONSULTANT, CLIENT AGREES TO BE BOUND BY THESE TERMS. If Client doES not agree to these terms, CLIENT SHOULD not use or otherwise access the service.
SECTION I: SERVICES; ACCOUNTS
1.1. Services to be Rendered.
Consultant shall be engaged to provide digital marketing services, (“Services,”) in the form search engine optimization, (“SEO,”) for the Company, which shall include off page SEO through the engagement of social media, authority website link placements and relevant traffic engagement. Additional services or amendments to the Services described above may be agreed upon between the Parties and shall be subject to additional charges. The Services offered may be modified at any time, pursuant to Section 1.11, supra.
1.2. Grant of Access.
Client agrees to grant Consultant administrator access to the following services for the duration of the Agreement: Client Web site, Web site traffic statistics, and a clientsite.tld email address.
1.3. Success not Guaranteed.
Client agrees and acknowledges that, due to the nature of the Services, success and improvement in SEO rankings is not guaranteed. Specifically, Client agrees and acknowledges that Consultant cannot guaranty the acceptance of Client’s Web site by any directory or search engine; a number one search position or consistent top ten placement for any keyword, phrase, or search term; an increase in the Web site’s Google position or that the Web site does not drop in position; the non-existence of Google Sandbox penalties; and/or dropped listings.
1.4. Paid Listings.
Should Client elect to participate in any expedited listing service Client shall be solely responsible for payment therefor.
1.5. Use of Link Farms.
Should Client choose to link to “bad neighborhoods” or use links from “link farms” it agrees and acknowledges that doing so may seriously deter all SEO efforts and the success of the Services.
1.6. Estimated Deliver-By Dates.
Any estimated deliver-by date(s) for the provision of the Services contained in any Proposal are estimates only and are contingent upon full co-operation of Company. Consultant does not guaranty any estimated deliver-by date shall be met; however, Services shall be rendered within a reasonable timeframe. During the Term there is a certain amount of feedback required in order to progress to subsequent phases. It is required that a single point of contact be appointed by Client and be made available on a daily basis in order to expedite the feedback process. Furthermore, incomplete content, or content requiring alteration during the Term may result in delay. The Parties agree that Consultant shall not be held to any estimated deliver-by date if the above conditions are not met. Further information regarding Deliver-By Dates may be found in the Proposal for Services submitted to Client together with this Agreement.
If the rendering of the Services are delayed for more than two (2) weeks by Client or are halted indefinitely, Consultant shall request full and final payment for the Services as set forth herein. If this occurs, additional costs may be imposed if the project is resumed at a later date.
1.8. Review Period.
Client shall have fourteen (14) days following the transmission of any and all deliverables to approve, disapprove, and/or request revisions to said deliverable. Any deliverable that is not expressly disapproved or for which Client does not expressly request revisions thereto shall be deemed approved and accepted by Client and may not subsequently be rejected or payment denied therefor. Should Client reject any portion of any deliverable Consultant agrees to remedy the deliverable to Client’s satisfaction within reason. Should Client repeatedly or unreasonably disapprove any deliverable Consultant has the right to terminate the Agreement and immediately demand full and complete payment of the Project Fee as well as all reasonable expenses for its recovery.
1.9. Change of Scope of Service; Pricing of Services.
Any additional services not specified in this Agreement, including any change to the scope of the Services to be provided, must be authorized by both Parties via a written change order. All prices specified in this contract will be honored for forty-five (45) days after the date of this Agreement, and further Services after the expiration of said period may require a revised and/or new Agreement, in Consultant’s sole and exclusive discretion.
1.10. Relationship of the Parties.
Consultant shall provide the Services to Client as an Independent Contractor and not as an employee. Accordingly, Consultant agrees that Client shall have no liability or responsibility for the withholding, collection, or payment of any taxes, employment insurance premiums, Social Security withholdings or pension plan contributions on any amounts paid by Client to Consultant or amounts paid by Consultant to its employees or subcontractors. Consultant also agrees to indemnify Client from any and all claims in respect to Client’s failure to withhold and/or remit any taxes, employment insurance premiums, or Social Security or pension plan contributions. Consultant agrees that as an Independent Contractor, Consultant will not be qualified to participate in or to receive any employee benefits that Client may extend to its employees.
Consultant is free to provide services to other clients, so long as such services would not create a conflict of interest and so long as there is no interference with Consultant’s contractual obligations to Company.
Consultant has no authority to and will not exercise or hold itself out as having any authority to enter into or conclude any contract or to undertake any commitment or obligation for, in the name of or on behalf of Company.
1.11. Modifications and Changes to Consultant’s Web site and/or Services.
Consultant may modify, add to, suspend, or delete any aspect of its Web site, bearing the URL sourcelts.com, and/or Service offered, in whole or in part, at its sole discretion at any time, with such modifications, additions or deletions being immediately effective. Such modifications, additions or deletions may include but are not limited to content offered, hours of availability, and equipment needed for access or use.
1.12. Access to Web site and/or Services.
Though Consultant shall endeavor to make its Web site and Services available twenty-four (24) hours a day, seven (7) days a week, except for planned down-time for maintenance, it does not warrant that Consultant’s Web site and Services will be at all times available; therefore, Client is encouraged to always ensure its files are backed-up and available outside of Consultant’s Web site. Consultant does not warrant that Client’s computer, tablet, and/or smartphone will be able to access and/or support Consultant’s Web site and/or Services.
1.13. Prohibited Uses of Web site and Services.
Client agrees and acknowledges that it shall not use Consultant’s Web site and/or the Services: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, governmental, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate Consultant’s intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of Consultant’s Web site; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of Consultant’s Web site and/or the Services.
1.14. Accuracy, Completeness and Timeliness of Information.
Consultant is not responsible if information made available on Consultant’s Web site and/or via the Services is not accurate, complete or current. Client acknowledges that Consultant’s Web site and the Services are provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information.
1.15. Online Accounts.
1.16. Multiple Accounts Prohibited.
Client agrees Client shall not have no more than one (1) account and shall not sell, trade or transfer that account to any other person or entity.
1.17. Account Security.
Client is responsible for maintaining the security of Client’s Account and password. Consultant cannot and will not be liable for any loss or damage from Client’s failure to comply with this security obligation.
1.18. Right to Monitor.
Consultant shall have the right to monitor Client’s Account in its sole and exclusive discretion.
SECTION II: TERMS OF PAYMENT; REFUNDS
As consideration for Services to be rendered under this Agreement Consultant shall be entitled to monthly compensation, (hereinafter the “Service Fee,”) per the plan of Client’s choosing upon Account registration and/or upgrade as set forth below:
Tier One Package – Seventy-Five U.S. Dollars and No/Cents ($75.00) per Web site; or
Tier Two Package - Seventy-Eight U.S. Dollars and No/Cents ($78.00) per Web site; or
Tier X Package - Fifty-Five U.S. Dollars and No/Cents ($55.00) per Web site.
2.2. Billing Cycle; Payment Date.
This Agreement shall be subject to a monthly billing cycle, (hereinafter the “Billing Cycle,”) with the first day of the first Billing Cycle commencing the Effective Date of this Agreement. The Service Fee shall be due and owing on the first (1st) day of each Billing Cycle to be applied to services rendered in the following month. No Service Fee shall be pro-rated for partial months within the Billing Cycle unless expressly agreed to in writing by Consultant.
Client shall be invoiced on the first day of the Billing Cycle, (hereinafter the “Billing Date.”)
The full and complete pre-paid Service Fee shall be due on the first (1st) day of each Billing Cycle and may shall be automatically paid via PayPalTM. Cash, check, money order, wire transfer, and direct debit/credit card payments are not accepted at this time.
In addition to the Project Fee Client shall be responsible for the payment of any and all incurred expenses related to the provision of the Services, including but not limited to postage and copying expenses, long-distance and/or international telecommunications expenses, coach class (or equivalent) transportation costs, lodging and meals. Client approval shall be sought for all expenses prior to their incurrence. In the event of termination of the Agreement, for any reason whatsoever, Client shall remain liable for all non-cancellable expenses.
2.6. Denied Payment; Late Payment.
Should payment be denied for insufficient funds or for any other reason whatsoever, Client shall be charged a denial of payment fee in the amount of Thirty-Five U.S. Dollars and No/Cents ($35.00.) Should Client fail to make arrears for any denied payment plus all fees within five (5) days following the Billing Date Consultant shall have, in its sole and exclusive discretion, the right to suspend or otherwise terminate the provision of its Services.
A compounding late fee of Two and a Half Percent (2.5%) per month or as otherwise proscribed by law shall be added to any and all unpaid invoices. In the instance of an unpaid invoice Consultant reserves the right to stop the provision of the Services until all outstanding amounts due and owing have been received.
In the event that Client wishes to cancel it purchase of services it may do so for a full refund within seventy-two (72) hours of the initial Billing Date. All refund requests under this section should be made to Consultant directly and in writing at email@example.com OR the SourceLTS support desk (http://sourcelts.com/whmcs/supporttickets.php).
After seventy-two (72) hours Consultant will begin adding Client’s Web site to its slipstream system after which time no refunds will be granted, for any reason whatsoever except for instances of Consultant’s sole negligence or as set forth herein, due to the nature of the Services. This shall expressly include but shall not be limited to refund requests based on the failure of a Web site to obtain higher search rankings as Consultant cannot guarantee the success of the Services as set forth more fully in Section 1.3, supra.; the Client’s failure to use the Services; customer-support related issues; and accidental renewals.
Notwithstanding the forgoing, Consultant may grant Client a partial refund, in Consultant’s sole and exclusive discretion should Consultant fail to cure a material breach or error upon written notice and demand and within thirty (30) calendar day as set forth in Section 3.2, infra, or should Consultant fail to provide a monthly report to Client by the thirty-fifth (35th) calendar day following any Billing Cycle. All refunds pursuant to this provision shall be made within sixty (60) calendar days of the applicable Billing Date or shall be waived.
SECTION III: TERM & TERMINATION
3.1. Term of Agreement.
This Consultant Agreement between Client and Consultant shall commence as of the date of this Agreement and continue on a month-to-month, automatically-renewing basis, (hereinafter the “Term.”)
Termination for Material Breach; Cure Period.
Either Party may terminate the Agreement in the event of a material breach hereof, except for in cases of a breach of the provisions of Section 6, provided that the non-breaching Party provides written notice of the breach to the breaching Party and allows for a cure period of no fewer than one (1) Billing Cycle during which time the breaching Party may cure its breach. In the event no cure period is given by Company, it shall waive and any all rights to a partial refund pursuant to Section 2.7, supra.
Termination by Consultant for Unauthorized Administrator Access
In the event of unauthorized administrator access for any reason other than Consultant’s sole negligence where such access undoes or otherwise sets back any Services performed, the Agreement may be immediately terminated in Consultant’s sole and exclusive discretion without prior notice of termination to Company.
Termination by Client for Non-Material Breach.
Client may terminate this Agreement at any time, in its sole and exclusive discretion, upon written request to firstname.lastname@example.org or the SourceLTS Support desk (http://sourcelts.com/whmcs/supporttickets.php) or via PayPal by following the guide at
https://www.paypal.com/us/webapps/helpcenter/helphub/article/?articleID=FAQ2327, as amended from time-to-time. Termination requests received fewer than fifteen (15) calendar days prior to the next Billing Date shall not take effect until the end of following Billing Cycle, and Client shall remain liable for payment of the final Service Fee.
Termination by Consultant for Non-Material Breach.
Consultant may terminate this Agreement at any time at its sole discretion upon providing to Client notice of one (1) Billing Cycle of Consultant’s intention to do so. Upon receipt of such notice Client may waive notice in which event this Agreement shall terminate immediately.
3.3. No Refunds for Early Termination.
In the event of termination, for any reason whatsoever, and by either Party, no Service Fee shall be refunded to Company, in whole or in part, even if said termination takes effect prior to the end of a Billing Cycle for which a Service Fee has been pre-paid.
3.4. Return Upon Termination.
Consultant agrees that upon termination it will return to Client all of Client’s property, including, but not limited to, intellectual property, trade secret information, customer lists, operation manuals, handbooks, records and accounts, materials subject to copyright, trademark, or patent protection, customer and Client information, credit cards, business documents, reports, automobiles, keys, passes, and security devices.
SECTION IV: WARRANTIES
Consultant warrants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any obligation Consultant may have to others; (ii) all work under this Agreement shall be Consultant’s original work and none of the Services or any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Consultant); (iii) Consultant has the full right to provide Client with the assignments and rights provided for herein; (iv) Consultant shall comply with all applicable laws and Consultant safety rules in the course of performing the Services and (v) if Consultant’s work requires a license, Consultant has obtained that license and the license is in full force and effect.
SECTION V: INTELLECTUAL PROPERTY
5.1. Works for Hire.
Any and all Final Deliverables resulting from the Services shall be deemed to be works for hire and shall be the sole and exclusive property of Client. Prior inventions, Consultant’s slipstream network, Consultant’s intellectual property and work performed for other clients by Consultant are expressly excluded. Notwithstanding the forgoing, if, upon termination, there exist any Services performed by Consultant for which full and complete payment has not been received Consultant shall have a lien on such deliverables, and Client shall not have the right to use for any purpose whatsoever any such deliverables until full and complete payment has been remitted.
5.2. Grant of License.
Client grants Consultant and its heirs, assigns, parents, subsidiaries, and partners an irrevocable, perpetual and unrestricted right and permission to publish to its Web site and/or otherwise make available any and all deliverables for marketing purposes. Client further agrees and acknowledges and grants to Consultant and Consultant’s heirs, assigns, parents, subsidiaries, and partners an irrevocable, perpetual, worldwide and unrestricted right and permission to use, copy, transmit, store, and access any and all Data Client shares, posts, uploads, or otherwise makes available via Consultant’s Web site and/or the Services for the purpose of backing up Consultant’s own systems and continued operation of Consultant’s Web site and/or provision of the Services.
5.3. Copyrights and Trademarks.
Client represents to Consultant and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Consultant, including the Web pages owned by Company, that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Consultant and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
5.4. Consultant’s Intellectual Property Rights Not Waived.
Client is not granted a license to any software by these Terms of Service. Notwithstanding Section 5.1, infra, Consultant’s Web site and Services belong to Consultant and are the property of Consultant or Consultant’s licensors (if any). Consultant retains all ownership rights in Consultant’s Web site and the Services, including but not limited the methods of provision and Consultant’s slipstream network. Furthermore, all material ("Materials") displayed or transmitted on Consultant’s Web site and/or provided via the Services, aside from any Final Deliverable, per Section 5.1, infra, including but not limited to documents, manuals, written policies and procedures, text, photographs, images, illustrations, video clips, audio clips, and graphics are owned by Consultant and are protected by U.S. and international copyright, trademarks, service marks, and other proprietary rights, laws and treaties. Except as provided, Client may not copy, reproduce, publish, transmit, transfer, sell, rent, modify, create derivative works from, distribute, repost, perform, display, or in any way commercially exploit the Materials carried on Consultant’s Web site, nor may Client infringe upon any of the copyrights or other intellectual property rights contained in the Materials. Client may not remove or alter, nor cause to be removed or altered, any copyright, trademark, or other proprietary notices or visual marks and logos from the Materials. Client may make a single print copy of any Materials provided by Consultant on Consultant’s Web site and/or provided via the Services for personal, non-commercial use only, provide that Client does not remove nor cause to be removed any copyright, trademarks, or other proprietary notices or visual marks or logos from the Material. Client may not archive or retain any of the Materials accessed on Consultant’s Web site and/or Services without Consultant’s express written permission. All requests for archiving, republication or retention of any part of the Materials must be in writing to Consultant and must clearly state the purpose and manner in which the Material will be used. Requests for permission to archive, retain, or republish any part of the Materials may be submitted to email@example.com. Consultant reserves any rights not expressly granted under these Terms of Service.
Client may have the opportunity to provide reviews, suggestions, ideas, and feedback, (hereinafter, collectively, “Feedback.”) Should Client so provide such Feedback Client grants Consultant sole ownership of the same, which includes without limitation, the right for Consultant or any Third Party it designates, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed. All such Feedback shall be treated as non-confidential. If it is determined that Client retains moral rights (including rights of attribution or integrity) in the content submitted by Client, Client hereby declares that (a) Client does not require that any personally-identifying information be used in connection with the content, or any derivative works of or upgrades or updates thereto; (b) Client has no objection to the publication, use, modification, deletion and exploitation of the content by Consultant or Consultant’s licensees, successors and assigns; (c) Client forever waives and agrees not to claim or assert any entitlement to any and all moral rights of an author in any of the content; and (d) Client forever releases Consultant, and Consultant’s licensees, successors and assigns, from any claims that Client could otherwise assert against Consultant by virtue of any such moral rights. Client also permits any third party to access, view, store or reproduce the content for that third party’s personal use. Notwithstanding the foregoing, Client acknowledges that Client’s Feedback may contain concepts, ideas, materials, proposals, suggestions and the like relating to Consultant’s Web site, the Services it offers, or Consultant’s other initiatives, (hereinafter Client’s “Ideas.”) With respect to Client’s Ideas Client acknowledges that: (a) Consultant receives numerous submissions from many parties and/or may have independently developed and/or considered ideas similar to Client’s Ideas, and that Consultant’s review of Client’s Ideas is not an admission of novelty, priority or originality; and (b) Consultant’s use of any ideas similar to Client’s Ideas, whether based on Client’s Feedback or Submissions, provided to Consultant by Third Parties, or independently developed or considered by Consultant, shall be without obligation to Client.
SECTION VI: Third-Party Advertisements, Promotions, and Links
6.1. Third Party Advertisements and Promotions.
Consultant may, from time to time, run advertisements and promotions from Third Parties on Consultant’s Web site and/or promote the same via its provision of the Services. Client’s business dealings or correspondence with, or participation in promotions of, advertisers other than Consultant, and any terms, conditions, warranties or representations associated with such dealings, are solely between Client and such Third Party. Consultant is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of Third-Party advertisers on Consultant’s Web site and/or the Services.
6.2. Use of Third-Party Tools.
Consultant may provide Client with access to Third-Party tools over which Consultant neither monitors nor has any control nor input. Client acknowledges and agrees that Consultant provides access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. Consultant shall have no liability whatsoever arising from or relating to Client’s use of optional Third-Party tools. Any use by Client of optional tools offered through the site is entirely at Client’s own risk and discretion and Client should ensure that Client is familiar with and approve of the terms on which tools are provided by the relevant Third-Party provider(s). Consultant may also, in the future, offer new services and/or features through Consultant’s Web site and/or via the Services (including, the release of new tools.) Such new features and/or Services shall also be subject to these Terms of Service.
6.3. Third-Party Links.
Certain content, products and Services available via Consultant’s Web site and/or Services may include materials from Third-Parties. Third-Party links on the Services may direct Client to Third-Party Web sites and/or services that are not affiliated with Consultant. Consultant is not responsible for examining or evaluating the content or accuracy and Consultant does not warrant and will not have any liability or responsibility for any Third-Party materials or Web sites and/or services, or for any other materials, products, or services of Third-Parties. Consultant is not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any Third-Party with whom Client connects via the services. Client shall review carefully the Third-Party's policies and practices and make sure Client understands them before Client engages in any transaction. Complaints, claims, concerns, or questions regarding Third-Party products should be directed to the Third-Party.
SECTION VII: DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
7.1. Disclaimer of Warranty; Limitation of Liability.
(A) NEITHER CONSULTANT nor ANY OF ITS AFFILIATES, EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE SERVICES PERFORMED SHALL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED.
(B) ANY DOWNLOADABLE SOFTWARE, PRODUCTS OR OTHER MATERIALS, WITHOUT LIMITATION, IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AGAINST INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. CONSULTANT MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AGAINST INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
(C) IN NO EVENT SHALL CONSULTANT, ITS EMPLOYEES, SUBSIDIARIES, PARENTS, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS, VENDORS, DIRECTORS, OFFICERS, AND MEMBERS, BE LIABLE TO CLIENT OR ANYONE ELSE FOR ANY LOSS OR DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, BUSINESS INTERRUPTION, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR DATA, ARISING OUT OF OR RELATED TO THE SERVICES UNLESS PROVIDED FOR HEREIN.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
7.2. Disclaimers of results.
In addition to the forgoing general disclaimers the follow express disclaimers regarding results are made to client:
A) ANY EARNINGS OR INCOME STATEMENTS, OR EARNINGS OR INCOME EXAMPLES, ARE ONLY ESTIMATES OF WHAT CONSULTANT THINKS CLIENT COULD EARN. THERE IS NO ASSURANCE CLIENT DO AS WELL. IF CLIENT RELIES UPON CONSULTANT’S FIGURES, CLIENT MUST ACCEPT THE RISK OF NOT DOING AS WELL. FURTHER, THERE IS NO ASSURANCE FOR LINK BUILDING OR SEARCH ENGINE RANKING IMPROVEMENTS.
B) WHERE SPECIFIC RESULTS FIGURES ARE USED, AND ATTRIBUTED TO AN INDIVIDUAL OR BUSINESS, THOSE PERSONS OR BUSINESS HAVE ACHIEVED THAT RESULT. THERE IS NO ASSURANCE CLIENT WILL DO AS WELL. IF CLIENT RELIES UPON CONSULTANT’S FIGURES; CLIENT MUST ACCEPT THE RISK OF NOT DOING AS WELL AS OTHER RESULTS.
C) ANY AND ALL CLAIMS OR REPRESENTATIONS, AS TO INCOME EARNINGS ON CONSULTANT’S WEB SITE OR RANKING RESULTS ARE NOT TO BE CONSIDERED AS AVERAGE OR TYPICAL.
D) THERE CAN BE NO ASSURANCE THAT ANY PRIOR SUCCESSES, OR PAST RESULTS, CAN BE USED AS AN INDICATION OF CONSULTANT’S FUTURE SUCCESS OR RESULTS.
E) RESULTS ARE BASED ON MANY FACTORS. CONSULTANT HAS NO WAY OF KNOWING HOW WELL THAT CLIENT WILL DO, AS CONSULTANT DOES NOT KNOW CLIENT, CLIENT’S BACKGROUND, CLIENT’S WORK ETHIC, OR CLIENT’S BUSINESS SKILLS OR PRACTICES. THEREFORE CONSULTANT DOES NOT GUARANTEE OR IMPLY THAT CLIENT WILL WIN ANY INCENTIVES OR PRIZES THAT MAY BE OFFERED, GET RICH, OR WILL DO AS WELL AS OTHERS, IMPROVE CLIENT’S SITE RANKINGS, OR MAKE ANY MONEY AT ALL. IF CLIENT RELIES ON CONSULTANT’S EARNINGS AND RANKINGS FIGURES CLIENT MUST ACCEPT THE RISK THAT INTERNET BUSINESS AND EARNINGS DERIVED THEREFROM HAVE UNKNOWN RISKS INVOLVED, AND ARE NOT SUITABLE FOR EVERYONE. MAKING DECISIONS BASED ON ANY INFORMATION PRESENTED IN CONSULTANT’S PRODUCTS, SERVICES, OR WEB SITE, SHOULD BE DONE ONLY WITH THE KNOWLEDGE THAT CLIENT COULD EXPERIENCE SIGNIFICANT LOSSES, OR MAKE NO MONEY AT ALL.
F) CLIENT AGREES THAT CONSULTANT IS NOT RESPONSIBLE FOR THE SUCCESS OR FAILURE OF CLIENT’S BUSINESS RELATING TO ANY INFORMATION PRESENTED BY CONSULTANT, ITS PRODUCTS OR SERVICES.
CLIENT agreeS to defend, indemnify and hold CONSULTANT harmless, as well as ITS affiliates, vendors, directors, officers, Users and agents, from and against all claims, SUITS, and expenses, including attorneys' fees, arising out of OR RELATED TO (A) CLIENT’S noncompliance with or breach of this Agreement AND (B) VIOLATIONS OF ANY THIRD-PARTY RIGHTS, INCLUDING THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
SECTION VIII: CHOICE OF LAW; ARBITRATION
8.1. Choice of Law, Jurisdiction, Venue.
The Parties agree that this Agreement shall be interpreted and construed in accordance with the laws of the State of Texas and that should any claims be brought against Client related thereto, subject to the arbitration provisions herein, be brought within a court of competent jurisdiction within the State of Pennsylvania, Philadelphia County. Consultant also consents to jurisdiction of any claims by Client related to the terms or conditions of this Agreement by a court of competent jurisdiction within the State of Texas, Dallas County.
8.2. Mediation & Binding Arbitration.
Client and Consultant agree to first mediate and may then submit to binding arbitration any claims that they may have against each other, of any nature whatsoever, other than those prohibited by, pursuit to the rules of the American Arbitration Association and within the County of Dallas, State of Texas.
8.3. Attorneys’ Fees & Costs.
Consultant and Client agree that should any action be instituted by either Party against the other regarding the enforcement of the terms of this Agreement, the prevailing party will be entitled to all of its expenses related to such litigation including, but not limited to, reasonable attorneys' fees and costs, both before and after judgment.
SECTION IX: MISCELLANEOUS
9.1. Client Responsible for Accuracy.
Client shall be responsible for the accuracy, completeness and propriety of information provided to Consultant and upon which Consultant relies to provide the Services.
9.2. Mutual Cooperation Required.
Consultant agrees to use its best efforts to fulfill and exceed Client’s expectations for the provision of the Services; Client agrees to aid Consultant in doing so by making available to Consultant needed information pertaining to Company.
9.3. Customer Service.
Should Client have any questions, comments or concerns regarding Consultant’s Web site and/or the Services customer service may be contacted at any time via firstname.lastname@example.org. Consultant strives to return all customer service inquires within forty-eight (48) business hours.
9.4. Export Control Laws.
The Services provided by Consultant may be subject to U.S. export controls, and export controls of other jurisdictions. By using Consultant’s Services Client warrants that Client is not located in any country, or exporting Consultant’s Services to any person or place, to which the United States, the European Union, or any other jurisdiction has embargoed goods. Client agrees to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any Services by Consultant subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. Client further agrees not to upload nor save to Consultant’s Services, data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. The assurances and commitments in this section shall survive termination of these Terms.
9.5. Affiliate Disclosure.
Consultant may have a business relationship with Third-Parties and affiliates to whose products and/or services Consultant links and promotes through the Services and its Web site. Because of this relationship Consultant may earn a commission on products purchased by Client from a Third-Party affiliate.
9.5. Server Location; International Transfer.
Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its Terms.
Any waiver of a right under these Terms shall only be effective if agreed or declared in writing. A delay in exercising a right or the non-exercise of a right shall not be deemed a waiver and shall not prevent a Party from exercising that right in the future. The rights and remedies herein provided are cumulative and not exclusive of any rights and remedies provided by law.
9.8. Force Majeure.
Consultant shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of god or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of Consultant including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). Consultant shall use all reasonable efforts to notify Client of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
Consultant shall have the right to assign and/or transfer these Terms and Consultant’s rights and obligations hereunder to any Third Party without notification to Client. Client agrees and acknowledges that Client shall not assign or transfer its rights or sub-contract or delegate the performance of any of its obligations under these Terms without Consultant’s prior written consent in Consultant’s sole and exclusive discretion.
9.10. Rights of Third Parties.
These Terms do not give any right to any Third Party except that any provision in these Terms.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
9.13. Updates & Effective Date.
The effective date of these Terms is October 1, 2015. From time to time, Consultant may update these Terms of Service by prominently posting a notice of update to Consultant’s Web site and contacting Client at the email Client provided upon registration, so Consultant encourages Client to review them often.