This Terms of Service Agreement (“Agreement”) is made between the Client and Geek Powered Studios, LLC (“Company”). The Client and Company are collectively referred to herein as the “Parties” and individually as a “Party”.
The Client wishes to be provided with internet marketing services by Company as described in the Proposal (aka Strategic Partnership Proposal) and defined below (collectively the “Services”). The Proposal prepared for Client is incorporated herein by reference. The Company agrees to provide the Services to the Client in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:
1.11 In Consideration for the compensation provided herein, Geek Powered Studios (henceforth called “the Company”) shall diligently provide some or all of the following services as set forth in the Proposal prepared for Client:
A keyword is a word or phrase people may associate your business with. Ex: The keyword “Ice Cream in Austin” may be associated with the business Amy’s Ice Cream. Keywords are search terms that someone might type into a Google or another search engine to find your website. On an ongoing basis we’ll research what keywords could potentially bring more traffic and incorporate them on the site.
We make sure your website is structured for SEO best practices which includes page titles, headers, metas, urls, content and more.
Content is what populates your website (Web pages/Blogs/Pictures) our Company focuses on getting two kinds of regular content out via your website; Web pages and Blogs.
Blogs and web pages inform your audience and allow for search engine optimizers to build keywords into your website organically, Ex: if we find that people in your business rank well for “ice cream in Austin,” we would populate your pages with things related to ice cream in Austin.
Search engine marketing companies sometimes use less than reputable techniques to create connections for a certain keyword. A page with nothing but the phrase “ice cream in Austin” over and over again. While this strategy may work in the short term, your website (and business) will get punished for creating disreputable content. The Company creates thoroughly researched articles with relevant content that genuinely informs readers and follows Google’s guidelines.
We find link opportunities from high authority sites which point to your site and indicate to Google that your website is an authoritative source of information.
We also pitch you to journalists who may be interested in writing stories about your business or using you as a source.
We build local citations (like Yelp, Yellow Pages, etc) to improve your visibility on Google maps and in Google searches with local intent.
If you need a blog, web page, or video created, we can create it. If there are issues regarding any services/review aggregators associated with your business, we will work towards finding a solution.
When a blog is generated on your website, it will be scheduled to post on your social media accounts as well, we strictly create blog posts as content for accounts and nothing more.
An inbound link is a link which directs traffic to your website from a completely different website. When a website that ranks high in Google posts a link to your website, your ranking can get raised. Ex: if FoxNews.com posted about your website, your website would rank higher in Google because of it. This would make your link profile better, as you have good websites linking to your business.
Why would my link profile need to be monitored?
If a low ranking or damaging website links to your site, it could harm your rankings
Monitoring link profiles would eliminate any harmful websites, which would make your rankings better.
If you need a graphic designed, we will do it. Any graphic for anything.
We handle all Pay-per-click advertising across Bing, Yahoo, and Google as well as manage 3rd Party Online Campaigns (Angie’s List, Yelp, etc.). This includes ongoing PPC optimization, Remarketing campaigns and Call Tracking. To judge the effectiveness of your web campaign, we will place code in certain portions of your website to track phone calls. These phone calls, coupled with the code, will help us know where we need to improve.
To get the most from your pay-per-click campaign, we run tests. These tests change variables to boost the amount of traffic to a certain web page.
Hosting allows individuals and organizations to make their website accessible via the World Wide Web. The Company provides hosting services, allowing your website to be found. The Company has partnered with Pagely to provide fast, secure, managed WordPress hosting.
The Company believes in accountability. That’s why we do our best to report the necessary statistics to you.
You can check a dashboard online at any time in order to view the campaign’s effectiveness and listen to calls that have been tracked.
We make ourselves available at a scheduled time to talk to you about any concerns you have.
We want your website to look the best it can, taking photos and video of your staff can help your website look better. Videos are a great trust builder, inform your audience, and add value to your Company. It also adds value to the site. By looking at a well-crafted photo or video, it gives your site financial value, as you have invested in your image.
We will build a website for your business to compete in today’s marketing climate, we will create another version of your website available to those that use smartphones
Both will be optimized to increase conversions for your business.
1.12 Company will determine the method, details, and means of performing the Services.
1.13 Client acknowledges and agrees that Company may, at its sole discretion, use subcontractors and consultants to perform some of the Services to be provided under this Agreement. In the event Company utilizes subcontractors or consultants to perform any of the Services, Company shall remain responsible to Client for performance under this Agreement.
1.14 Company may represent, perform services for, and contract with other additional clients, persons, or companies as Company, in its sole discretion, sees fit, provided those services do not pose a conflict of interest with the services performed for the Client.
1.15 If Client does not provide photos or videos for its website or blog, Company will use authorized third-party photos or videos that Company has purchased or licensed or which are available in the public domain.
The relationship between the parties herein is that as of independent parties and not of partners, joint venture partners, employer and employee, principal and agent or any other relationship other than as expressly provided herein. Nothing herein shall be construed to provide the authority to one party to bind the other party to any other matter sounding in contract or tort.
Prior to commencing any work, the Company shall receive an initial payment per the client’s Proposal. Payments shall then be made to the Company on a monthly basis in the amount set forth in the Proposal prepared for Client and for every month up through the termination of this Agreement pursuant to Article III, regardless of whether or not the Company actually performed Services in that month. A Client who has timely made all payments required under the terms of this Agreement and the Proposal prepared for Client shall be a Client in Good Standing.
During the term of this Agreement, the Parties hereto may agree in writing to additional and/or alternative compensation that shall be paid to the Company based on Company achieving certain performance goals as may be agreed upon by the Company and the Client. Any agreement reached pursuant to this paragraph shall be deemed an addendum to this Agreement and considered to be part of this Agreement by both Parties for all purposes.
SEO only increases in difficulty with time given the myriad of search engine changes. Additionally, the Company is constantly upgrading client services with upgraded tools and ongoing employee education. The Company reserves the right to increase its monthly fee by 3-5% annually.
This Agreement shall have an initial term of one (1) year (unless otherwise noted on Client’s Proposal) from the Effective Date (the “Initial Term”), unless earlier terminated in accordance with the provisions in Article IV. Thereafter, the Agreement shall be automatically renewed for additional one-month terms (each a “Renewal Term”), unless either Party notifies the other of its intent not to renew the Agreement at least thirty (30) days prior to the end of the Initial Term or any Renewal Term. The Initial Term and Renewal Terms, if any, are collectively referred to herein as the “Term”.
This Agreement may be terminated by either party, for any reason, upon the provision of ninety (90) days prior written notice to the other party.
This Agreement may be immediately terminated by either party without liability if: (i) the other party violates any applicable U.S. state or local law, rule, regulation, or ordinance (including without limitation, any applicable advertising regulation); (ii) the other party otherwise materially breaches any provision, warranty, or representation of this Agreement and, if such breach or violation is curable, it remains un-remedied for a period of thirty (30) days following receipt of written notice thereof detailing such breach or violation; or (iii) the other party becomes insolvent, makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver for its business, or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency or protection of the rights of creditors. The Company shall have the sole and exclusive right to terminate this Agreement for good cause where (i) the Client fails to timely respond to requests from the Company for any information or assistance that the Company deems to be necessary to achieve the goals of the Services described herein, and the determination of “timeliness” shall be made exclusively by the Company; (ii) the Company deems that the Client requests changes that are detrimental to the performance of campaigns; or (iii) the Client’s account is delinquent for failure to make payment more than thirty (30) days after payment is due.
In the event of any termination hereunder, regardless of the reason for termination, the Client shall pay the Company all amounts due to the Company up through the effective date of termination, regardless of whether or not the Company actually performed Services in that month. Moreover, the Parties agree that in the event the Company terminates this Agreement for good cause, Company shall not be liable for any losses suffered by Client, and Company shall not be required to accept a reduction of its fee under any circumstance.
The Parties agree that during the course of this Agreement each party may disclose non-public material information to the other.
4.11 Neither party (each, a “receiving party”), along with its directors, officers, employees, agents, advisors, subcontractors, independent contractors, subsidiaries, and affiliates (collectively its “Representatives”) shall, during the Term and for a period of five (5) years thereafter, without the other party’s (each, a “disclosing party”) prior written approval in each instance, not to be unreasonably withheld, disclose or otherwise make available to any other person or entity (whether acquired on the Effective Date or during the continuance of this Agreement) any information relating to the disclosing party's business plans, products, advertising, innovations, fees, advertising or product concepts, customers, technology, computer software, computer systems, marketing methods, sales margins, cost of goods, cost of materials, capital structure, operating results, or other business affairs (including without limitation, the Fees and the remainder of the terms hereof), or any other proprietary or confidential information of the disclosing party (the “Confidential Information”). The foregoing shall not apply to Confidential Information which: (i) is or becomes known to the general public other than as a result of the disclosure, directly or indirectly, by the receiving party or its Representative; (ii) was or is made available to the receiving party on a non-confidential basis from a source other than the disclosing party or any affiliate, provided that such source is not, and was not, to the receiving party’s actual or constructive knowledge, bound by a confidentiality agreement with the disclosing party or any affiliate or otherwise prohibited from transmitting such information; or (iii) is required to be disclosed by law, provided the receiving party gives the disclosing party notice and an opportunity to seek an appropriate protective order at its own expense. It is understood that the information required to be held in confidence as herein provided may be disclosed by the receiving party only to Representatives who need to know such Confidential Information for the purposes of fulfilling its obligations hereunder. Such Representatives, prior to any such disclosure, shall be informed of the confidential nature of such Confidential Information and shall agree, in writing, to be bound by the terms hereof.
4.12 All Confidential Information furnished to the receiving party by the disclosing party or any third party at the request of the disclosing party shall be and remain the property of the disclosing party. All copies of such Confidential Information in written, graphic, or other tangible form shall be returned to the disclosing party at any time upon the advance written request of the disclosing party or upon the termination or expiration of this Agreement for any reason whatsoever, subject to the terms hereof.
4.13 The confidentiality provisions set forth herein shall also apply separately to each employee, subcontractor, or independent contractor engaged hereunder, and the engaging party shall be responsible for informing any such employee or contractor of any confidential and proprietary information included in any work contracted for hereunder. The engaging party shall require each such contractor to agree to be bound in writing by confidentiality terms no less stringent than those set forth herein.
The Client covenants and agrees that, for the term of this Agreement and for a period of one (1) year thereafter, the Client shall not, and will not assist, directly or indirectly, anyone to, (a) hire any employee, consultant or independent contractor of the Company; (b) seek to persuade any employee, consultant or independent contractor of the Company to discontinue employment or work on behalf of the Company; (c) become employed by any of the Company’s employees, independent contractors, suppliers, customers or service providers; (d) seek to persuade any independent contractor, supplier, customer or service provider to discontinue his/her relationship with Company or refrain from entrusting additional business to, or doing additional business; (e) develop a business relationship with any of Company’s clients other than those introduced to the Client by the Company; or (f) affect to the detriment of the Company or any of its affiliates any relationship of Company, its affiliates or any of its officers, employees and agents with any client, employee or agent of Company or its affiliates.
4.31 License Rights: During the term of this Agreement, the Company hereby grants a limited, revocable, exclusive license to the Client to use all information and materials created or provided by or on behalf of the Company in connection with its rendition of Services hereunder. This license shall expire: (a) on the date of termination of this Agreement, or (b) on the date the Client becomes a Client in Good Standing.
4.32 Client in Good Standing: The Client is bound to make payment and carry out the covenants and representations set forth in this Agreement. Where a Client has timely made all payments required under this Agreement, and the Agreement terminates for a reason other than by the Company for good cause within the meaning of Section 3.3 above, the Client will be deemed a Client in Good Standing and shall be granted certain intellectual property rights as outlined in subsections 4.33 through 4.36 below.
4.33 Deliverables: Subject to the Company’s rights in and to the Company Property (as defined in subsection 4.34 below), any designated third-party rights, and subsection 4.35 hereof, a Client in Good Standing shall own all right, title, and interest in and to all information and materials created or provided by or on behalf of the Company in connection with its rendition of Services hereunder (collectively, the “Deliverables”) on a “work for hire” basis (as such term is commonly understood in U.S. copyright law). The Company agrees to execute any and all documents that the Client in Good Standing deems reasonably necessary to effectuate this arrangement at its own expense.
4.34 Company Property: Notwithstanding subsection 4.33 above, all creative content, computer code, methodologies and other information and/or materials created by the Company prior to or fully outside the scope of this Agreement (the “Company Property”) shall remain the sole and exclusive property of the Company, despite its incorporation in or use with the Deliverables. The Company hereby grants a fully paid-up, perpetual, irrevocable, worldwide, non-exclusive license to the Client in Good Standing to use the Company Property, but only to the extent incorporated into the Deliverables and not separately and apart therefrom.
4.35 Third Party Materials: Notwithstanding the foregoing, all materials, rights, and intellectual property owned by third parties (such as talent rights, photography, artwork, props, and music) shall remain the sole and exclusive property of such third parties despite their incorporation in or use with the Deliverables, and the Client agrees to use such third-party materials consistent with the restrictions for such third-party materials communicated to the Client in writing. The Company agrees that it will not incorporate any third-party materials in the Deliverables without the Client’s prior written approval in each instance, not to be unreasonably withheld. The Company acknowledges that neither the Company’s work nor entered int this Agreement will impair or violate anyone else’s intellectual property rights.
4.36 IP License: The Client hereby grants the Company the limited, non-exclusive, and non- transferable (other than as may be permitted hereunder) right to exploit: (a) the Deliverables; and (b) the Client’s trademarks, logos, trade names, and other identifying marks and IP during the Term to fulfill its obligations hereunder. All such uses are subject to the Client’s prior written approval in each instance, not to be unreasonably withheld. For clarity and without limitation on the foregoing, the Company acknowledges and agrees that it is not acquiring any ownership rights in and to the Deliverables and/or the Client’s IP (including its trademarks, logos, trade names, and other identifying marks), and will use all commercially practicable efforts to protect such ownership rights at all times on the Client’s behalf.
The Client hereby represents and warrants: (a) that it has the requisite corporate power and authority to enter into and perform its obligations under this Agreement; (b) the execution and delivery of this Agreement and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its board of directors or managers, as the case may be, is required; (c) this Agreement has been duly executed and delivered by the party and constitutes a valid and binding obligation of the party, enforceable against it in accordance with its terms; and (d) that any and all information, including but not limited to text, graphics, photos, videos, designs, artwork, copyrights and trademarks which Client provides to the Company, for any purpose, are either owned by or licensed to or otherwise authorized for the Client’s use so that Client has all rights and permissions necessary to lawfully provide said information to the Company.
The Client shall defend, indemnify, and hold the Company and its members, officers, directors, employees, agents and their respective affiliates and successors and assigns (an “Indemnified Party”) harmless from and against any suit, proceeding, assertion, damage, cost, liability or expense (including court costs and attorney’s fees) incurred directly or indirectly by an Indemnified Party as a result of a breach of any representation, warranty or covenant made by the Client herein or any claim made by a third party against any Indemnified Party arising from or connected, directly or indirectly, to the actions or omissions of the Client.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY, AND FITNESS FOR ANY PURPOSE. To the fullest extent possible by law, the Company disclaims any guarantees regarding increased exposure of the Client on search engines, and increased conversion rates. The Client hereby understands and appreciates that the nature of the internet itself including search engine policies and procedures is ever changing and certain search engines impose limitations on sites, particularly newer sites, that are too numerous to enumerate. However, the Client hereby agrees to accept the risk that despite the best efforts of the Company, the competitiveness of its site(s) may be inhibited by numerous factors that cannot be controlled by the Company. Accordingly, the Company shall not be liable for any Consequential, Special, Exemplary, Punitive Damages or any other damages, (including without limitation any loss of profits, revenue, interest, goodwill, loss or corruption of data or for any loss or interruption to any of Client’s customers’ business) that are sought under any theory whether in contract or in tort for any in issue that is in any way related to the policies, procedures, or actions of search engines such as but not limited to Google.
The Company shall not be liable for delays or defaults in furnishing goods or services hereunder, if such delays or defaults on the part of Company are due to activities or factors beyond its reasonable control, including but not limited to: (a) Acts of God or of a public enemy; (b) Acts of the United States or any state or political subdivision thereof; (c) Fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes; (d) Embargoes, epidemics or quarantine restrictions; (e) Shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind; (f) Delays of supplier or delay of transportation for any reason; (g) Causes beyond the control of Company in furnishing items or services including, but not limited to, breakdown or failure of machinery, equipment, servers, or internet service, or delay in Client reporting problems or furnishing information or materials. The Client’s acceptance of delivery of goods or services shall constitute a waiver and release of Company by Client for any claim for damages, setoff, discount or other liability on account of delay.
All notices and other communications provided to any party hereto under this Agreement or any instrument executed pursuant hereto shall be in writing and shall be deemed to have been duly given (a) three days after being sent by registered or certified mail (return receipt requested), (b) when delivered, if delivered personally, (c) upon the expiration of twenty four (24) hours after transmission, if sent by facsimile if a confirmation of transmission is produced by the sending machine (and a copy of each facsimile promptly shall be sent by ordinary mail), (d) upon the expiration of twenty four (24) hours after transmission, if sent by email if a confirmation of transmission is produced by the sending computer (and a copy of each email transmission promptly shall be sent by ordinary mail) or (e) on the third day after being sent by overnight mail or overnight courier, in each case to the parties at their respective addresses set forth above (or at such other address for a party as shall be specified by like notice; provided that the notices of a change of address shall be effective only upon receipt thereof). To be effective notices to the Company should be addressed to Geek Powered Studios, 1005 E. St. Elmo Road, Building 5, Austin, Texas 78745.
In the event that any provision of this Agreement is determined by a non-appealable decision to be illegal, invalid or unenforceable, then such provision shall not be voided, but shall be enforced to the maximum extent permissible under applicable law, and the remainder of this Agreement shall remain in full force and effect.
This Agreement shall be governed by and be construed in accordance with the laws of the State of Texas, without giving effect to the conflicts of law of such state. Any dispute between or, legal action or proceeding against any of the parties hereto under, arising out of or in any manner relating to, this Agreement and the transactions contemplated herein shall be adjudicated by a court of competent jurisdiction within the State of Texas. Each of the parties herein: (a) consents and submits to the personal jurisdiction of any of such courts in any such action or proceeding; (b) consents to the service of any complaint, summons, notice or other process relating to any such action or proceeding by certified mail, return receipt requested, postage prepaid; (c) waives any claim or defense in any such action or proceeding based on any alleged lack of personal jurisdiction, improper venue or forum non conveniens or any similar basis, to the extent permitted by law; and (d) waives trial by jury in any litigation in any court with respect to, in connection with, or arising out of, this Agreement, or the validity, interpretation, collection or enforcement thereof.
This Agreement contains the entire understanding of the parties herein with respect to its subject matter. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings other than those expressly set forth herein. This Agreement supersedes all prior agreements and understandings between the Company and the Client with respect to Internet Marketing.
No waiver, change or modification of this Agreement or of any covenant, conditions or limitations herein contained shall be valid unless in writing and duly executed by both parties.
The Client shall not assign or transfer this Agreement or any rights or obligations hereunder to any third party without the prior written consent of the Company.
The headings of this Agreement have been inserted for purposes of convenience only and are to be ignored in any construction of the provisions hereof.
No waiver of any rights by any party hereto shall be construed as a waiver of the same or any other right at any prior or subsequent time. Further, no waiver or delay on the part of a party in exercising any power of right hereunder and no forbearance or indulgence of a party granted to the other party, shall in any way restrict or diminish the full rights and powers of the party under this Agreement, or operate as a waiver of any breach by a party of any of the terms and conditions of this Agreement.
It is agreed and warranted by the Parties that the individuals executing this Agreement on behalf of the respective Parties are authorized to execute such an agreement. No further proof of authorization shall be required.
By accepting the Proposal prepared for Client, Client accepts the Proposal and the Terms of Service in its entirety as set forth herein and incorporated by reference.
This Terms of Service Agreement (“Agreement”) is made between the Client and Geek Powered Studios, LLC (“Company”). The Client and Company are collectively referred to herein as the “Parties” and individually as a “Party”.
The Client wishes to be provided with internet marketing services by Company as described in the Proposal (aka Strategic Partnership Proposal) and defined below (collectively the “Services”). The Proposal prepared for Client is incorporated herein by reference. The Company agrees to provide the Services to the Client in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:
1.11 In Consideration for the compensation provided herein, Geek Powered Studios (henceforth called “the Company”) shall diligently provide some or all of the following services as set forth in the Proposal prepared for Client:
A keyword is a word or phrase people may associate your business with. Ex: The keyword “Ice Cream in Austin” may be associated with the business Amy’s Ice Cream. Keywords are search terms that someone might type into a Google or another search engine to find your website. On an ongoing basis we’ll research what keywords could potentially bring more traffic and incorporate them on the site.
We make sure your website is structured for SEO best practices which includes page titles, headers, metas, urls, content and more.
Content is what populates your website (Web pages/Blogs/Pictures) our Company focuses on getting two kinds of regular content out via your website; Web pages and Blogs.
Blogs and web pages inform your audience and allow for search engine optimizers to build keywords into your website organically, Ex: if we find that people in your business rank well for “ice cream in Austin,” we would populate your pages with things related to ice cream in Austin.
Search engine marketing companies sometimes use less than reputable techniques to create connections for a certain keyword. A page with nothing but the phrase “ice cream in Austin” over and over again. While this strategy may work in the short term, your website (and business) will get punished for creating disreputable content. The Company creates thoroughly researched articles with relevant content that genuinely informs readers and follows Google’s guidelines.
We find link opportunities from high authority sites which point to your site and indicate to Google that your website is an authoritative source of information.
We also pitch you to journalists who may be interested in writing stories about your business or using you as a source.
We build local citations (like Yelp, Yellow Pages, etc) to improve your visibility on Google maps and in Google searches with local intent.
If you need a blog, web page, or video created, we can create it. If there are issues regarding any services/review aggregators associated with your business, we will work towards finding a solution.
When a blog is generated on your website, it will be scheduled to post on your social media accounts as well, we strictly create blog posts as content for accounts and nothing more.
An inbound link is a link which directs traffic to your website from a completely different website. When a website that ranks high in Google posts a link to your website, your ranking can get raised. Ex: if FoxNews.com posted about your website, your website would rank higher in Google because of it. This would make your link profile better, as you have good websites linking to your business.
Why would my link profile need to be monitored?
If a low ranking or damaging website links to your site, it could harm your rankings
Monitoring link profiles would eliminate any harmful websites, which would make your rankings better.
If you need a graphic designed, we will do it. Any graphic for anything.
We handle all Pay-per-click advertising across Bing, Yahoo, and Google as well as manage 3rd Party Online Campaigns (Angie’s List, Yelp, etc.). This includes ongoing PPC optimization, Remarketing campaigns and Call Tracking. To judge the effectiveness of your web campaign, we will place code in certain portions of your website to track phone calls. These phone calls, coupled with the code, will help us know where we need to improve.
To get the most from your pay-per-click campaign, we run tests. These tests change variables to boost the amount of traffic to a certain web page.
Hosting allows individuals and organizations to make their website accessible via the World Wide Web. The Company provides hosting services, allowing your website to be found. The Company has partnered with Pagely to provide fast, secure, managed WordPress hosting.
The Company believes in accountability. That’s why we do our best to report the necessary statistics to you.
You can check a dashboard online at any time in order to view the campaign’s effectiveness and listen to calls that have been tracked.
We make ourselves available at a scheduled time to talk to you about any concerns you have.
We want your website to look the best it can, taking photos and video of your staff can help your website look better. Videos are a great trust builder, inform your audience, and add value to your Company. It also adds value to the site. By looking at a well-crafted photo or video, it gives your site financial value, as you have invested in your image.
We will build a website for your business to compete in today’s marketing climate, we will create another version of your website available to those that use smartphones
Both will be optimized to increase conversions for your business.
1.12 Company will determine the method, details, and means of performing the Services.
1.13 Client acknowledges and agrees that Company may, at its sole discretion, use subcontractors and consultants to perform some of the Services to be provided under this Agreement. In the event Company utilizes subcontractors or consultants to perform any of the Services, Company shall remain responsible to Client for performance under this Agreement.
1.14 Company may represent, perform services for, and contract with other additional clients, persons, or companies as Company, in its sole discretion, sees fit, provided those services do not pose a conflict of interest with the services performed for the Client.
The relationship between the parties herein is that as of independent parties and not of partners, joint venture partners, employer and employee, principal and agent or any other relationship other than as expressly provided herein. Nothing herein shall be construed to provide the authority to one party to bind the other party to any other matter sounding in contract or tort.
Prior to commencing any work, the Company shall receive an initial payment per the client’s Proposal. Payments shall then be made to the Company on a monthly basis in the amount set forth in the Proposal prepared for Client and for every month up through the termination of this Agreement pursuant to Article III, regardless of whether or not the Company actually performed Services in that month. A Client who has timely made all payments required under the terms of this Agreement and the Proposal prepared for Client shall be a Client in Good Standing.
During the term of this Agreement, the Parties hereto may agree in writing to additional and/or alternative compensation that shall be paid to the Company based on Company achieving certain performance goals as may be agreed upon by the Company and the Client. Any agreement reached pursuant to this paragraph shall be deemed an addendum to this Agreement and considered to be part of this Agreement by both Parties for all purposes.
SEO only increases in difficulty with time given the myriad of search engine changes. Additionally, the Company is constantly upgrading client services with upgraded tools and ongoing employee education. The Company reserves the right to increase its monthly fee by 3-5% annually.
This Agreement shall have an initial term of one (1) year (unless otherwise noted on Client’s Proposal) from the Effective Date (the “Initial Term”), unless earlier terminated in accordance with the provisions in Article IV. Thereafter, the Agreement shall be automatically renewed for additional one-month terms (each a “Renewal Term”), unless either Party notifies the other of its intent not to renew the Agreement at least thirty (30) days prior to the end of the Initial Term or any Renewal Term. The Initial Term and Renewal Terms, if any, are collectively referred to herein as the “Term”.
This Agreement may be terminated by either party, for any reason, upon the provision of ninety (90) days prior written notice to the other party.
This Agreement may be immediately terminated by either party without liability if: (i) the other party violates any applicable U.S. state or local law, rule, regulation, or ordinance (including without limitation, any applicable advertising regulation); (ii) the other party otherwise materially breaches any provision, warranty, or representation of this Agreement and, if such breach or violation is curable, it remains un-remedied for a period of thirty (30) days following receipt of written notice thereof detailing such breach or violation; or (iii) the other party becomes insolvent, makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver for its business, or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency or protection of the rights of creditors. The Company shall have the sole and exclusive right to terminate this Agreement for good cause where (i) the Client fails to timely respond to requests from the Company for any information or assistance that the Company deems to be necessary to achieve the goals of the Services described herein, and the determination of “timeliness” shall be made exclusively by the Company; (ii) the Company deems that the Client requests changes that are detrimental to the performance of campaigns; or (iii) the Client’s account is delinquent for failure to make payment more than thirty (30) days after payment is due.
In the event of any termination hereunder, regardless of the reason for termination, the Client shall pay the Company all amounts due to the Company up through the effective date of termination, regardless of whether or not the Company actually performed Services in that month. Moreover, the Parties agree that in the event the Company terminates this Agreement for good cause, Company shall not be liable for any losses suffered by Client, and Company shall not be required to accept a reduction of its fee under any circumstance.
The Parties agree that during the course of this Agreement each party may disclose non-public material information to the other.
4.11 Neither party (each, a “receiving party”), along with its directors, officers, employees, agents, advisors, subcontractors, independent contractors, subsidiaries, and affiliates (collectively its “Representatives”) shall, during the Term and for a period of five (5) years thereafter, without the other party’s (each, a “disclosing party”) prior written approval in each instance, not to be unreasonably withheld, disclose or otherwise make available to any other person or entity (whether acquired on the Effective Date or during the continuance of this Agreement) any information relating to the disclosing party's business plans, products, advertising, innovations, fees, advertising or product concepts, customers, technology, computer software, computer systems, marketing methods, sales margins, cost of goods, cost of materials, capital structure, operating results, or other business affairs (including without limitation, the Fees and the remainder of the terms hereof), or any other proprietary or confidential information of the disclosing party (the “Confidential Information”). The foregoing shall not apply to Confidential Information which: (i) is or becomes known to the general public other than as a result of the disclosure, directly or indirectly, by the receiving party or its Representative; (ii) was or is made available to the receiving party on a non-confidential basis from a source other than the disclosing party or any affiliate, provided that such source is not, and was not, to the receiving party’s actual or constructive knowledge, bound by a confidentiality agreement with the disclosing party or any affiliate or otherwise prohibited from transmitting such information; or (iii) is required to be disclosed by law, provided the receiving party gives the disclosing party notice and an opportunity to seek an appropriate protective order at its own expense. It is understood that the information required to be held in confidence as herein provided may be disclosed by the receiving party only to Representatives who need to know such Confidential Information for the purposes of fulfilling its obligations hereunder. Such Representatives, prior to any such disclosure, shall be informed of the confidential nature of such Confidential Information and shall agree, in writing, to be bound by the terms hereof.
4.12 All Confidential Information furnished to the receiving party by the disclosing party or any third party at the request of the disclosing party shall be and remain the property of the disclosing party. All copies of such Confidential Information in written, graphic, or other tangible form shall be returned to the disclosing party at any time upon the advance written request of the disclosing party or upon the termination or expiration of this Agreement for any reason whatsoever, subject to the terms hereof.
4.13 The confidentiality provisions set forth herein shall also apply separately to each employee, subcontractor, or independent contractor engaged hereunder, and the engaging party shall be responsible for informing any such employee or contractor of any confidential and proprietary information included in any work contracted for hereunder. The engaging party shall require each such contractor to agree to be bound in writing by confidentiality terms no less stringent than those set forth herein.
The Client covenants and agrees that, for the term of this Agreement and for a period of one (1) year thereafter, the Client shall not, and will not assist, directly or indirectly, anyone to, (a) hire any employee, consultant or independent contractor of the Company; (b) seek to persuade any employee, consultant or independent contractor of the Company to discontinue employment or work on behalf of the Company; (c) become employed by any of the Company’s employees, independent contractors, suppliers, customers or service providers; (d) seek to persuade any independent contractor, supplier, customer or service provider to discontinue his/her relationship with Company or refrain from entrusting additional business to, or doing additional business; (e) develop a business relationship with any of Company’s clients other than those introduced to the Client by the Company; or (f) affect to the detriment of the Company or any of its affiliates any relationship of Company, its affiliates or any of its officers, employees and agents with any client, employee or agent of Company or its affiliates.
4.31 License Rights: During the term of this Agreement, the Company hereby grants a limited, revocable, exclusive license to the Client to use all information and materials created or provided by or on behalf of the Company in connection with its rendition of Services hereunder. This license shall expire: (a) on the date of termination of this Agreement, or (b) on the date the Client becomes a Client in Good Standing.
4.32 Client in Good Standing: The Client is bound to make payment and carry out the covenants and representations set forth in this Agreement. Where a Client has timely made all payments required under this Agreement, and the Agreement terminates for a reason other than by the Company for good cause within the meaning of Section 3.3 above, the Client will be deemed a Client in Good Standing and shall be granted certain intellectual property rights as outlined in subsections 4.33 through 4.36 below.
4.33 Deliverables: Subject to the Company’s rights in and to the Company Property (as defined in subsection 4.34 below), any designated third-party rights, and subsection 4.35 hereof, a Client in Good Standing shall own all right, title, and interest in and to all information and materials created or provided by or on behalf of the Company in connection with its rendition of Services hereunder (collectively, the “Deliverables”) on a “work for hire” basis (as such term is commonly understood in U.S. copyright law). The Company agrees to execute any and all documents that the Client in Good Standing deems reasonably necessary to effectuate this arrangement at its own expense.
4.34 Company Property: Notwithstanding subsection 4.33 above, all creative content, computer code, methodologies and other information and/or materials created by the Company prior to or fully outside the scope of this Agreement (the “Company Property”) shall remain the sole and exclusive property of the Company, despite its incorporation in or use with the Deliverables. The Company hereby grants a fully paid-up, perpetual, irrevocable, worldwide, non-exclusive license to the Client in Good Standing to use the Company Property, but only to the extent incorporated into the Deliverables and not separately and apart therefrom.
4.35 Third Party Materials: Notwithstanding the foregoing, all materials, rights, and intellectual property owned by third parties (such as talent rights, photography, artwork, props, and music) shall remain the sole and exclusive property of such third parties despite their incorporation in or use with the Deliverables, and the Client agrees to use such third-party materials consistent with the restrictions for such third-party materials communicated to the Client in writing. The Company agrees that it will not incorporate any third-party materials in the Deliverables without the Client’s prior written approval in each instance, not to be unreasonably withheld. The Company acknowledges that neither the Company’s work nor entered int this Agreement will impair or violate anyone else’s intellectual property rights.
4.36 IP License: The Client hereby grants the Company the limited, non-exclusive, and non- transferable (other than as may be permitted hereunder) right to exploit: (a) the Deliverables; and (b) the Client’s trademarks, logos, trade names, and other identifying marks and IP during the Term to fulfill its obligations hereunder. All such uses are subject to the Client’s prior written approval in each instance, not to be unreasonably withheld. For clarity and without limitation on the foregoing, the Company acknowledges and agrees that it is not acquiring any ownership rights in and to the Deliverables and/or the Client’s IP (including its trademarks, logos, trade names, and other identifying marks), and will use all commercially practicable efforts to protect such ownership rights at all times on the Client’s behalf.
The Client hereby represents and warrants: (a) that it has the requisite corporate power and authority to enter into and perform its obligations under this Agreement; (b) the execution and delivery of this Agreement and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its board of directors or managers, as the case may be, is required; (c) this Agreement has been duly executed and delivered by the party and constitutes a valid and binding obligation of the party, enforceable against it in accordance with its terms; and (d) the Client further represents and warrants that any information such as but not limited to text, graphics, photos, designs, trademarks, or other artwork provided to the Company for any purpose are either owned by the Client or the Client is authorized to use said information.
The Client shall defend, indemnify, and hold the Company and its members, officers, directors, employees, agents and their respective affiliates and successors and assigns (an “Indemnified Party”) harmless from and against any suit, proceeding, assertion, damage, cost, liability or expense (including court costs and attorney’s fees) incurred directly or indirectly by an Indemnified Party as a result of a breach of any representation, warranty or covenant made by the Client herein or any claim made by a third party against any Indemnified Party arising from or connected, directly or indirectly, to the actions or omissions of the Client.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY, AND FITNESS FOR ANY PURPOSE. To the fullest extent possible by law, the Company disclaims any guarantees regarding increased exposure of the Client on search engines, and increased conversion rates. The Client hereby understands and appreciates that the nature of the internet itself including search engine policies and procedures is ever changing and certain search engines impose limitations on sites, particularly newer sites, that are too numerous to enumerate. However, the Client hereby agrees to accept the risk that despite the best efforts of the Company, the competitiveness of its site(s) may be inhibited by numerous factors that cannot be controlled by the Company. Accordingly, the Company shall not be liable for any Consequential, Special, Exemplary, Punitive Damages or any other damages, (including without limitation any loss of profits, revenue, interest, goodwill, loss or corruption of data or for any loss or interruption to any of Client’s customers’ business) that are sought under any theory whether in contract or in tort for any in issue that is in any way related to the policies, procedures, or actions of search engines such as but not limited to Google.
The Company shall not be liable for delays or defaults in furnishing goods or services hereunder, if such delays or defaults on the part of Company are due to activities or factors beyond its reasonable control, including but not limited to: (a) Acts of God or of a public enemy; (b) Acts of the United States or any state or political subdivision thereof; (c) Fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes; (d) Embargoes, epidemics or quarantine restrictions; (e) Shortage of goods, labor strikes, slowdowns, differences with workmen or labor stoppages of any kind; (f) Delays of supplier or delay of transportation for any reason; (g) Causes beyond the control of Company in furnishing items or services including, but not limited to, breakdown or failure of machinery, equipment, servers, or internet service, or delay in Client reporting problems or furnishing information or materials. The Client’s acceptance of delivery of goods or services shall constitute a waiver and release of Company by Client for any claim for damages, setoff, discount or other liability on account of delay.
All notices and other communications provided to any party hereto under this Agreement or any instrument executed pursuant hereto shall be in writing and shall be deemed to have been duly given (a) three days after being sent by registered or certified mail (return receipt requested), (b) when delivered, if delivered personally, (c) upon the expiration of twenty four (24) hours after transmission, if sent by facsimile if a confirmation of transmission is produced by the sending machine (and a copy of each facsimile promptly shall be sent by ordinary mail), (d) upon the expiration of twenty four (24) hours after transmission, if sent by email if a confirmation of transmission is produced by the sending computer (and a copy of each email transmission promptly shall be sent by ordinary mail) or (e) on the third day after being sent by overnight mail or overnight courier, in each case to the parties at their respective addresses set forth above (or at such other address for a party as shall be specified by like notice; provided that the notices of a change of address shall be effective only upon receipt thereof). To be effective notices to the Company should be addressed to Geek Powered Studios, 1005 E. St. Elmo Road, Building 5, Austin, Texas 78745.
In the event that any provision of this Agreement is determined by a non-appealable decision to be illegal, invalid or unenforceable, then such provision shall not be voided, but shall be enforced to the maximum extent permissible under applicable law, and the remainder of this Agreement shall remain in full force and effect.
This Agreement shall be governed by and be construed in accordance with the laws of the State of Texas, without giving effect to the conflicts of law of such state. Any dispute between or, legal action or proceeding against any of the parties hereto under, arising out of or in any manner relating to, this Agreement and the transactions contemplated herein shall be adjudicated by a court of competent jurisdiction within the State of Texas. Each of the parties herein: (a) consents and submits to the personal jurisdiction of any of such courts in any such action or proceeding; (b) consents to the service of any complaint, summons, notice or other process relating to any such action or proceeding by certified mail, return receipt requested, postage prepaid; (c) waives any claim or defense in any such action or proceeding based on any alleged lack of personal jurisdiction, improper venue or forum non conveniens or any similar basis, to the extent permitted by law; and (d) waives trial by jury in any litigation in any court with respect to, in connection with, or arising out of, this Agreement, or the validity, interpretation, collection or enforcement thereof.
This Agreement contains the entire understanding of the parties herein with respect to its subject matter. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings other than those expressly set forth herein. This Agreement supersedes all prior agreements and understandings between the Company and the Client with respect to Internet Marketing.
No waiver, change or modification of this Agreement or of any covenant, conditions or limitations herein contained shall be valid unless in writing and duly executed by both parties.
The Client shall not assign or transfer this Agreement or any rights or obligations hereunder to any third party without the prior written consent of the Company.
The headings of this Agreement have been inserted for purposes of convenience only and are to be ignored in any construction of the provisions hereof.
No waiver of any rights by any party hereto shall be construed as a waiver of the same or any other right at any prior or subsequent time. Further, no waiver or delay on the part of a party in exercising any power of right hereunder and no forbearance or indulgence of a party granted to the other party, shall in any way restrict or diminish the full rights and powers of the party under this Agreement, or operate as a waiver of any breach by a party of any of the terms and conditions of this Agreement.
It is agreed and warranted by the Parties that the individuals executing this Agreement on behalf of the respective Parties are authorized to execute such an agreement. No further proof of authorization shall be required.
By accepting the Proposal prepared for Client, Client accepts the Proposal and the Terms of Service in its entirety as set forth herein and incorporated by reference.
