General Terms and Conditions
This Agreement (“General Terms and Conditions”) is hereby entered into between Improove, Inc. having a place of business at 85 Broad Street, Fl. 28, New York City, NY 10004 (hereinafter referred to as “Company” or “us”) and the party set forth in the related Project Service Agreement (“Customer” or “you”) incorporated herein by this reference (together with the Project Service Agreement, the “PSA”) and applies to the purchase of all Search Engine Optimization and Reporting Services as well as any further services offered by Company and accepted by you (hereinafter collectively referred to as “lmproove Services”) ordered by Customer.
TERM AND TERMINATION.
This Agreement shall be effective as of the Agreement Date set forth in the PSA. Either party upon written notice to the other may terminate this Agreement, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. This Agreement may be terminated by Company (i) immediately if Customer fails to pay any fees hereunder within ninety (90) days of the receipt of the invoice sent by the Company; or (ii) if Customer fails to cooperate with Company or hinders Company’s ability to perform the Improove Services hereunder.
Except as may be expressly stated herein, nothing in this Agreement will constitute any form of commitment by Company or Customer or its Affiliates to not enter into contracts with others. It is expressly understood and agreed that this Agreement does not grant either Company nor Customer any exclusive rights.
OFFERS, PRESENTATIONS, ACCEPTANCE.
Unless expressly stated, the Company’s PSA, including their fee and price quotations, shall be non-binding – absent any express provisions in writing to the contrary. No other terms or conditions of an offer of the Company shall be of any effect unless otherwise specifically agreed to by Company in a separate written agreement duly signed by an officer of the Company. Customer will be deemed to have assented to all terms of the offer if any part of the Improove Services is accepted by the Customer. If Customer finds any term of the Offers not acceptable, Customer must so notify the Company at once and must reject the Improove Services delivered or performed under this Agreement. Any additional or different terms or conditions contained in Customer’s order or response hereto shall be deemed objected to by Company and shall be of no effect. No general terms and conditions of a Customer shall at any time form a part of the content of any contract or agreement between the Customer and the Company, even if they are not further expressly rejected by the Company. For all presentations rendered prior to acceptance of a PSA, unless otherwise agreed by Company in writing, Company shall be entitled to reasonable compensation, including any third party, material and personnel costs. In the event that a presentation by the Company does not lead to an agreement being entered into between Company and the Customer, all presentation documents, copies, regardless of the form they were provided in, must be returned to Company, and no copies shall be made. Any digital copy must be deleted. Company shall be entitled and reserves the right to present such presentation materials to other clients.
Company agrees to provide Customer with Improove Services as described in the PSA and this Agreement. Company shall be authorized to use the specific keywords and/or phases set forth in the PSA for development, improving the ranking of, and/or positioning the contents of the Customer’s URL(s) (as set forth in the PSA) in search engines. Improove Services are intended to provide the Customer with preferential positioning in selected search engines and report results on an ongoing and timely basis.
Company is an independent contractor and assumes full responsibility for the payment of all taxes, including Social Security, unemployment and withholding taxes, for itself and for all persons engaged by it in the performance of the services hereunder. Company shall provide workers’ compensation coverage and any insurance or other legally required benefits for itself and all persons engaged by it in the performance of the services hereunder. Neither Company nor any employee or contractor of Company shall have the right to participate in any employee benefit program of the Customer.
THIRD PARTY SERVICES.
Company shall be entitled, at Company’s discretion to use third parties for performing its obligations pursuant to this Agreement. In the event Company installs software of third parties, such software shall be provided to the Customer on the basis and conditions of a special software license agreement to be concluded between the third-party and the Customer. At the Customer’s request Company will provide Customer with these licensing terms. Company shall be entitled to conclude licensing agreements with the Customer under the very same licensing terms and conditions. To the extent that Customer employs third-party service provides, Customer shall be solely responsible for compliance with terms of the license granted hereunder.
SCOPE OF SERVICES, DURATION OF SERVICES.
The scope of the Company’s services as well as start and duration of our services shall be set forth in the PSA. Unless otherwise stated, the Company’s provision of services shall start on the day on which the contract is concluded and shall end with the last step to be taken pursuant to the Offer, but in no event later than the day the final invoice is issued.
CHANGE OF SERVICES, SUPPLEMENTARY SERVICES.
In the event that the Customer requests additional services or a change of Improove Services and the Company agrees to such request, the Company shall be entitled to an equitable compensation for any such requested additional or changed Improove Services.
PERFORMANCE OF SERVICES; DUTY TO COOPERATE.
Company shall only be obligated to perform the Improove Services after the Customer has supplied the Company with all necessary information and documents requested for performance. Electronic services, including enhancements on websites or of programs are deemed to be performed and operational when such electronic services are provided electronically (via Email or .ftp) to the Customer or posted online, the Customer was informed accordingly, provided that information by email is sufficient. Unless otherwise agreed in writing, the Company shall not be obligated to adapt the Improove Services to third-party software or to integrate the Improove Software into third-party software. All Improove Services shall be reviewed by the Customer for any errors or potential lability with respect to unfair competition or intellectual property infringement. In the event that Company does not receive a written objection within five (5) days of performance, the Improove Services are deemed accepted and approved, and the Customer shall be liable for any errors (including, without limitation, erroneous data, misspelling) as well as for any violation of third-party rights. After acceptance of the Improove Services, the comp any shall not be obligated to save and further maintain or service the data used for our services or our electronic services.
Customer agrees to pay the Company an initial retainer (the “Retainer”) upon your execution of this Agreement. The amount of the Retainer shall be determined in the PSA and shall be payable prior to the Company’s performance of Improove Services.
OWNERSHIP RIGHTS, USAGE PERMISSIONS, COPYRIGHT.
Unless otherwise expressly agreed in writing agreed all the Improove Services, as well as services performed by third parties, shall remain exclusive intellectual property of Improove. This includes also inventions, algorithms, software, application processes, drafts, presentations, etc. Unless otherwise expressly in writing agreed, Customer shall only have the right to use and duplicate the Improove Services for itself within the United States of America and only for the duration of the Agreement (license of utilization). The Improove Services shall not – without our explicit written consent (and additional consent of the originator in case services or works of third parties are involved) – be changed, further developed or be passed on to third parties. The Company shall be entitled to refer on our website as well as in our advertising materials to the contractual relationship or mandate with the Customer, particularly also with its distinctive mark (logos).
PERFORMANCE PERIODS AND DEADLINES.
Company shall use its reasonable efforts to perform the Services for Customer by the agreed upon date, however, time shall not be of the essence. Except for cases of Company’s willful misconduct or gross negligence, Company shall not be liable to Customer for delays in the performance of Services.
FEES; LIMITATIONS ON REFUNDS AND CANCELLATION FEES.
As full consideration for the Services and Deliverables to be provided hereunder, the Customer agrees to pay us the consideration set forth in PSA. If not agreed otherwise, the fee(s) must be received prior to the start of any Improove Services. If not agreed expressly in writing otherwise, we shall be entitled to reasonable fees for each of our services rendered. If services have not been completed due to circumstances attributable to the Customer, the Company shall be entitled to the agreed fee or – if not agreed – to an appropriate fee for the services ordered by the Customer. THE CUSTOMER FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT OR THE PSA BY CUSTOMER, ANY REFUNDS SHALL BE REDUCED BY AN AMOUNT BASED ON A PERCENTAGE OF WORK COMPLETED AS AND TO THE EXTENT PROVIDED IN THE PSA. THE CUSTOMER FURTHER AGREES TO PAY UPON CANCELLATION THE AMOUNT OF ANY CANCELLATION FEES OR OTHER AMOUNTS DUE TO COMPANY AS PROVIDED IN THE PSA. THE COMPANY IS HEREBY AUTHORIZED TO DEDUCT ANY AMOUNTS REMAINING DUE FROM CUSTOMER FROM ANY REFUNDS AND TO CHARGE CUSTOMER’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CUSTOMER TO COMPANY.
Company will invoice Customer for fees at the frequency and in the manner set forth in the applicable PSA. Each invoice will include service provider’s name and address, Customer’s purchase order number (if applicable), a statement of the Services covered by such invoice, the total fees billed, and any other information that may be required by such statement of work or purchase order or otherwise agreed to by the Parties in writing.
Unless otherwise expressly agreed, Customer’s payment shall be due and payable within thirty (30) days from the date of invoice without discount and shall be made by wire transfer to the bank account stated. Payment shall be considered effected at the date of the full receipt of the entire amount invoiced. If the Customer fails to make payment on or before the date required, Customer shall pay interest to the Company at the rate of one point five percent (1.5%) per month or such lesser amount permitted by law. The specification or charging of interest shall not be deemed an agreement to extend credit. If Customer fails to observe the foregoing terms or the terms of any other agreements between Company and Customer, or if Customer becomes insolvent, all balances then due and owing to the Company shall become due immediately, notwithstanding any agreed upon payment periods. Any orders that have been confirmed by the Company, but not yet filled, shall in such cases become cancelable at the sole discretion of Company.
Unless otherweise stated in the PSA, out of pocket expenses, third-party expenses as well as travel expenses incurred by us shall be reimbursed by the Customer to us.
PARTIAL BILLING, SET OFF AND ASSIGMENT OF CLAIMS.
Company shall be entitled to submit partial invoices. Customer does not enjoy a right of set-off under any circumstances.
WEB SITE CHANGES.
Company is not responsible for changes made to Customer’s web site(s) by other parties that adversely affect the search engine rankings of Customer’s web site(s). Company has no obligation to make backups of the Customer’s operated website(s) or provided documents or back up them otherwise whatsoever.
Additional services not listed herein or in PSA will be charged on an hourly basis upon prior notice of the Customer. Company is not responsible for Customer’s overwriting Improove Services work to Customer’s web site(s).
Customer shall indemnify and hold harmless Company (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Company as a result of any claim, judgment, or adjudication against Company related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Customer to Company (the “Customer Content”), (b) a claim that Company’s use of the Customer Content infringes the intellectual property rights of a third party and (c) any claims by third parties against the Company based on intellectual property infringement or unfair competition related to the Improove Services. To qualify for such defense and payment, Company must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in, the defense and all related negotiations. Company shall pay, defend, indemnify and save the Customer and its successors and assigns, harmless from and against any and all losses, claims, expenses, damages, penalties and fees, including attorneys’ fees, incurred by the Customer, its successors or assigns in connection with the violation or breach by Company of its obligations under this Agreement (including without limitation any of Company’s representations and warranties set forth above) or of any ordinance, regulation, rule or law of any country, political subdivision or duly constituted public authority.
DISCLAIMER OF ALL OTHER WARRANTIES.
COMPANY DOES NOT WARRANT THAT THE IMPROOVE SERVICES WILL MEET THE CUSTOMER’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, COMPANY PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL, DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST INCOME OR PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THERE SHALL BE NO REFUNDS. COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES. NOTWITHSTANDING THE FOREGOING, COMPANY’S LIABILITY – WHETHER BASED UPON CONTRACT, TORT, EQUITY, NEGLIGENCE OR ANY OTHER LEGAL CONCEPT – SHALL IN NO EVENT EXCEED THE VALUE OF CUSTOMER’S ORDER, AS DESCRIBED ON THE PSA, IT IS AGREED AND ACKNOWLEDGED THAT THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN COMPANY AND CUSTOMER, THAT COMPANY’S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. IN JURISDICTIONS THAT LIMIT THE SCOPE OF OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED, THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE, COUNTRY OR OTHER JURISDICTION.
Customer and Company make the following representations and warranties for the benefit of the other party:
Customer and Company represent and warrant that they have the authority, expertise and capacity to enter into this Agreement and to fulfill the obligations connected with this agreement
Customer and Company represent to the other party and unconditionally guarantee that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to the other party are owned by Customer or Company, or that Customer or Company have permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend the other party and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer or Company.
Company represents and warrants that the export and delivery of the Deliverables and Developments to the Company has not and will not violate the laws or regulations of any country or political subdivision to which Company is subject.
Company shall perform its obligations, services or maintenance for the Customer with care, skill and diligence in accordance with applicable professional standards.
Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Company for inclusion on the website above are owned by Customer, or that Customer has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Company and its subcontractors from any liability or suit arising from the use of such elements.
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce.
The Customer shall warrant and be liable for any (private and state or regulatory) permits/approvals, licenses and rights necessary for the operation, maintenance and improvement of the Customer’s operated website(s) including its content(s) and the Customer will take all commercially reasonable efforts to assure their persistence.
Furthermore the Customer shall warrant and be liable that its website operates according to applicable laws and is not used for non-legitimate purposes or equally used with his knowledge by third parties. The Customer shall be obliged to take all commercially reasonable precautions to avoid breach of laws or improper uses of its website(s) by third parties.
The Customer will provide to the Company without delay after receipt and confirmation of its order with all for the rendering of services necessary information, access data and documents. The Customer shall be liable for the accuracy of the information provided.
The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Company and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of one (1) year from the effective date.
In order to protect the Company’s trade secrets and confidential information, Customer shall not, during and for a period of two (2) years following the performance of the Improove Services, directly or indirectly, for Customer’s own benefit or for the benefit of any other person, firm or entity, do any of the following: (a) solicit the employment or services of, or hire, or cause others to solicit the employment or services of or hire any person who is employed by the Company or any of its affiliates or who was known to be employed by the Company or any of its affiliates as of the time of the performance of the Improove Services or for the six (6) month period preceding the performance of Improove Services; or (b) otherwise interfere with the business or accounts of the Company or any of its affiliates.
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
RELATIONSHIP OF PARTIES.
Company, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Customer does not undertake by this Agreement, the PSA or otherwise to perform any obligation of Company, whether by regulation or contract. In no way is Company to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding.
NOTICE AND PAYMENT.
Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the addresses listed in the PSA mailed by certified, registered or Express mail, return receipt requested or by Federal Express. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
This Agreement shall be governed in accordance with the laws of the State of New York, with the exclusion of the Convention for the International Sale of Goods (CISG) and any applicable rules on conflict of laws.
AGREEMENT BINDING ON SUCCESSORS.
The provisions of the Agreement shall be binding upon and shall insure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Company. Company reserves the right to assign subcontractors as needed to this project to ensure on-time completion. In the event of any permitted subcontracting, Company shall remain responsible for any action or omission of any subcontractor in the same manner as if such act or omission had been done by Company.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
NO INFERENCE AGAINST AUTHOR.
No provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision.
Customer and Company agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within thirty (90) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in New York, New York and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of New York sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of New York or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
READ AND UNDERSTOOD.
Each party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.
DULY AUTHORIZED REPRESENTATIVE.
Each party warrants that their representative whose signature appears below is duly authorized by all necessary and appropriate corporate actions to execute this Agreement.