MASTER SERVICE AGREEMENT
Updated: April 15th, 2020
This SEO and Digital Marketing Services Agreement (“Agreement”) is made and entered into by and between Break The Web, Inc., a New York corporation (“BTW”) and You (the “Client”), as of the date BTW receives the Client’s first payment for Services (the “Effective Date”).
- Services; Engagement.
- BTW offers a variety of online marketing and web promotion services, including without limitation, search engine optimization (“SEO”), link building, search engine optimized press release service, search engine visibility and premium listings services and email communication tools (“Services”).
- The parties agree that, subject to the terms and conditions of this Agreement, BTW shall perform the Services for the service fees more fully set forth on the BTW Service Proposal Statement of Work, which is incorporated into and made a part of this Agreement.
- Either party shall have the right at any time to terminate this Agreement, for any reason or for no reason at all, by providing not less than thirty (30) business days written notice to the other party. For further details please see the Termination section of this Agreement.
- Service Fees.
- In consideration for the Services performed by BTW, Client shall pay all BTW’s fees for Services (“Service Fees”) in the amounts and according to the terms as set forth in the separate BTW Service Proposal Statement of Work provided to Client and incorporated herein by reference.
- The type of Service Fees and payment schedule associated with each of them, including without limitation, “Project Setup Fee” (if required) and “Campaign Fees” will also be set forth in the separate BTW Service Proposal Statement of Work.
- If any conflict or discrepancy shall arise between the terms of this Agreement and those of the BTW Service Proposal Statement of Work, the terms of the BTW Service Proposal Statement of Work shall govern and be controlling.
- Service Fees are subject to change upon the written agreement of both Parties. A failure of the Parties to agree to a Service Fee change may result in the termination of this Agreement. Please review the Termination section of this Agreement.
- Billing; Payments.
- At the beginning of each BTW monthly billing cycle, BTW, using its secure third party payment processing service (“Payment Processor”), will automatically charge the Client’s credit card, or other form of payment on file with the Payment Processor, for the next month.
- If Client becomes ten (10) or more days past due, the Services shall be suspended until all past due charges are paid, and Client shall be in default of this Agreement. Client will continue to be responsible for any monthly minimum charge during any period that Services are suspended or not delivered due to Client’s breach. Client acknowledges and agrees that BTW is not responsible whatsoever for any negative effect or damages the suspension of Services might have on Clients website properties.
- Once Service Fees are paid in full to BTW any elements of text, graphics, photos, contents, trademarks, or other artwork furnished to Client by BTW will be owned by Client for inclusion in website owned by Client.
- Any amounts not paid by Client when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less).
- If it becomes necessary for BTW to enforce this Agreement through an attorney, collection agency, or directly through small claims court, Client shall pay all attorney’s fees, agency fees, court costs, and other collections costs, including without limitation post-judgment costs for legal services at trial and appellate levels.
- Any request for a refund of any Service Fees will be at the sole and absolute discretion of BTW. If BTW determines that the Client is eligible for a refund, it will be calculated by first deducting BTW fees for all services already performed at our customary rate and all expenses associated with the project setup at the time the refund is requested.
- Client shall not be eligible for a refund of any SEO Campaign automatic monthly recurring fees once it has been paid to BTW.
- Monthly Reports.
- BTW will automatically send Client a monthly report the day after the Client has paid the automatic monthly fee.
- Client Cooperation.
- Client shall make every effort to fully cooperate with BTW and provide such information as is reasonably required for BTW to effectively fulfill and perform the Services. Such information includes, but is not limited to, monthly updates on performance of Services for the duration of this Agreement.
- Client agrees to make its employees and representatives available to BTW according to the relevant areas of responsibility as needed for completing the Services set forth in The BTW Service Proposal Statement of Work.
- If the Client cannot or otherwise fails to meet required deadlines or deliver to BTW the information necessary for BTW to perform the Services listed in The BTW Service Proposal Statement of Work, then Client shall not hold BTW liable for failure of execution of Services listed in The BTW Service Proposal Statement of Work.
- No Guarantees.
- The Client acknowledges and agrees that due to the dynamic properties of the internet and the services provided by BTW, as well as the reliance upon public behavioral elements beyond our control, BTW cannot guarantee any particular page placement in search engine ranking results or a specific number of clicks on search engines, or a specific number of Social Media likes or shares (“Results”).
- Client further agrees that BTW shall not be responsible for a reduction in the Results caused by changes made by the Client without the approval or authorization of BTW.
- Client Representations and Warranties.
Client agrees, represents, and warrants to BTW, both during and after the term of this Agreement that:
- The Service is for the sole use within Client’s own organization and by Client’s own employees, representatives or agents.
- The Service may not be shared with affiliates or any third party, including joint marketing arrangements.
- Client shall not use the Service in any way that (i) infringes on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy, (ii) violates any law, statute, ordinance or regulation, or (iii) is defamatory, libelous, unlawfully threatening or unlawfully harassing.
- The term of this Agreement shall be Month-to-Month, commencing on the Effective Date.
- Either party shall have the right at any time to terminate this Agreement, for any reason or for no reason at all, by providing not less than thirty (30) business days written notice to the other party, to terminate the relationship which will cancel any new automatic monthly payments, programs, campaigns, plans, schedules or work in progress.
- The termination date shall be the last day the Client’s billing cycle in which the notice required by this section has been given.
- Any termination of this Agreement, under any circumstances, will not release the Client from its financial obligations on projects opened by BTW at the Client’s BTW will be entitled to any commissions, fees and payments for services performed prior to the Client’s instructions to cancel and for advertising and materials placed or delivered thereafter if BTW is unable to halt such placement or delivery.
- Client acknowledges and agrees that upon termination of this Agreement certain information regarding the Client that was posted on the Internet as part of our Services may continue to be available to the public on the Internet following termination of the Agreement. All provisions of this Agreement that by their purpose should survive termination of the Agreement including, without limitation, those set forth in the “Survival” section hereafter, shall survive.
- Performance Post Termination, Suspension or Pausing.
- The Client acknowledges and agrees that the continual application of BTW Services is essential to successfully increasing and maintaining the performance of the Clients website properties, measured in part by website ranking with search engines, website traffic, website users and other analytical and diagnostic tools.
- The Client further agrees that the termination, suspension or pausing of the Services may have an adverse effect on the performance of the website properties and Client shall not hold BTW responsible or liable for any reduction in performance, loss or revenue or other damages resulting from the termination, suspension or pausing of the Services.
- Independent Contractor Status.
- The relationship of BTW to Client will be that of an independent contractor, and neither BTW nor any employee of BTW will be deemed to be an agent or employee of Client. It is expressly understood that this undertaking is not a joint venture, agency, employment, or partnership.
- Third Party Services.
- Client acknowledges and agrees that some of the BTW Services you receive from BTW may be provided by one or more third party service providers, third party platforms, vendors, contractors, website hosting services or affiliates (“Third Party Services”) selected by BTW in our sole and absolute discretion, including without limitation, Facebook, Google, Twitter, Instagram, Youtube, WordPress and LinkedIn. Providing these Third Party Services, requires that we give you access to the third party functions or services.
- CLIENT ACKNOWLEDGES AND AGREES THAT BTW DOES NOT CONTROL SUCH THIRD PARTY SERVICES AND IS THEREFORE NOT LIABLE TO YOU OR ANY THIRD PARTY FOR ANY ISSUES OF ANY KIND RELATING TO THIRD PARTY ACCESS OR THIRD PARTY SERVICES. CLIENT FURTHER AGREES THAT IF A THIRD PARTY SERVICE CANNOT OR OTHERWISE FAILS TO COMMUNICATE WITH BTW, MEET REQUIRED DEADLINES OR DELIVER TO BTW THE INFORMATION NECESSARY FOR BTW TO PERFORM THE SERVICES LISTED IN THE BTW SERVICE PROPOSAL STATEMENT OF WORK, THEN CLIENT SHALL NOT HOLD BTW LIABLE FOR FAILURE OF EXECUTION OF SERVICES LISTED IN THE BTW SERVICE PROPOSAL STATEMENT OF WORK. CLIENT FURTHER AGREES THAT BTW IS NOT RESPONSIBLE FOR CHANGES CLIENT MAKES TO THE THIRD PARTY SERVICES WITHOUT BTW APPROVAL OR AUTHORIZATION. CLIENT AGREES TO INDEMNIFY BTW FOR ANY DAMAGES THAT MAY RESULT FROM CLIENTS USE OF OR UNAUTHORIZED CHANGES TO ANY THIRD PARTY SERVICES.
- BTW reserves the right, in its sole and absolute discretion, to terminate, suspend, cancel or alter your Third Party Access at any time and without notice to you.
- Security; Release
- In order to provide our Services, BTW must be given login or access credentials (“BTW Credentials”) to password protected services used by the Client including, but limited to, Client hosting services, cPanel, Social Media Accounts, Google Analytics, Google My Business and Google Adwords. BTW requests that the Client provide unique BTW Credentials before services commence.
- Client hereby releases, to the maximum extent allowed by law, BTW, its officers, directors, employees, affiliates, and agents from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with BTW access to, or a third party hacking or intrusion of Clients password protected services.
- If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
- Client Content Rights and Related Responsibilities
- “Client Content” means, without limitation, any digital files, images, photos, artwork, videos, audio and documents, or other content you make available to BTW. BTW will make commercially reasonable efforts to ensure that all facilities, and third parties used to process and store your Content meet a high standard for security.
- In order for us to provide the Service to you, we require that you grant us certain rights with respect to Client Content, including the ability to transmit, manipulate, process, store and copy Client Content in order to provide our Services.
- Your acceptance of this Agreement gives us the permission to do so and grants us any such rights necessary to provide the Service to you. THIS PERMISSION INCLUDES ALLOWING US TO TRANSMIT USER CONTENT TO THIRD-PARTY SERVICE PROVIDERS FOR USE IN THE OPERATION, PROCESSING AND ADMINISTRATION OF THE SERVICE AND THE RIGHTS GRANTED TO US ARE EXTENDED TO THESE THIRD PARTIES TO THE DEGREE NECESSARY IN ORDER FOR THE SERVICE TO BE PROVIDED.
- With regard to Client Content, you represent and warrant that: (i) you have all necessary rights, including intellectual property rights, to submit Client Content to BTW and grant the licenses set forth herein; (ii) BTW will not need to obtain licenses from any third party or pay royalties to any third party with respect to Client Content; (iii) Client Content does not infringe any third party’s rights, including intellectual property rights and privacy rights; and (iv) Client Content complies with all applicable laws.
- You grant BTW a limited, worldwide, non-exclusive, royalty-free license and right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from Client Content for the purpose of allowing you to edit and display Client Content using BTW Services and archiving or preserving Client Content for disputes, legal proceedings, or investigations. The license for legal archival/preservation purposes will continue indefinitely.
- You retain ownership of all of Client Content and all of the intellectual property rights in Client Content. BTW does not claim ownership over any of your Client Content. These Terms do not grant us any licenses or rights to your Client Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
- Client Content placed on, as well as the format, layout and structure of third party platforms, such as WordPress, are subject to changes resulting from third party updates, therefore the Client agrees that such changes are beyond BTW control and BTW shall not be liable for any negative performance consequently resulting therefrom.
- You agree to release, indemnify, defend and hold harmless BTW and BTW’s officers, directors, employees, agents, subsidiaries, partners, contractors, shareholders, attorneys, assigns and affiliates from and against any loss, liabilities, damages, costs, or expenses, including reasonable attorneys’ fees, resulting from any third party claim, action or demand arising under or relating to:
- This Agreement or the breach of Client warranties, representations and obligations under this Agreement or any other BTW term, rule, policy or agreement;
- Client’s failure to perform in accordance with this Agreement;
- Client’s use of the Services;
- The Client website, Client Content or Client Domain; or
- Client’s violation of any third party rights.
- You agree that this indemnification obligation survives this Agreement’s termination or expiration. You agree to give prompt, written notice to BTW upon the receipt of notice of any claim by a third party against you which might give rise to a claim against BTW, stating the nature and basis of such claim and, if ascertainable, the amount thereof.
- Break The Web Proprietary Property.
- BTW shall have no duty or obligation to disclose to the Client, or any third party, any material, services, processes, methods, plans, concepts, software or any other property, of any nature or kind, that BTW, in its sole discretion, deems to be proprietary to BTW. The Client acknowledges and consents to this right. Any resource acquisitions (“Resources”) made by BTW including, but not limited to, tools and websites, are the property of BTW and use of these Resources for the benefit of the Client does not transfer ownership of these Resources to the Client.
- “Confidential Information” means information about BTW’s business, products, suppliers, third party providers, technologies, strategies, financial information, operations or activities that is proprietary and confidential, including without limitation any BTW digital brochure or “Deck”, and all business, promotional, marketing, financial, technical and other information disclosed by BTW.
- Client agrees that it shall not disclose any BTW digital brochure or “Deck” through any Social Media or other internet outlet, nor disclose any other Confidential Information or the contents of this Agreement to any third party (other than its employees and professionals who have a need to know and agree to this restriction) without BTW’s prior written consent.
- Confidential Information will not include information that you can establish is in or enters the public domain without breach of these confidentiality obligations.
- Disclaimer of Warranties
OUR CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF OUR SERVICES OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF OUR SERVICES AND ALL PRODUCTS AND SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES IS AT YOUR SOLE RISK.
WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THIRD-PARTY SERVICE PROVIDERS THAT WE MAY USE IN THE OPERATION, PROCESSING AND ADMINISTRATION OF THE SERVICES.
WE DO NOT MAKE, AND EXPRESSLY DISCLAIM, ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES, OR THE SAFETY, RELIABILITY, TITLE, TIMELINESS, COMPLETENESS, MERCHANTABILITY, CONFORMITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES. IT IS YOUR SOLE RESPONSIBILITY TO INDEPENDENTLY EVALUATE THE ACCURACY, CORRECTNESS OR COMPLETENESS OF THE CONTENT AND THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES.
WE DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISS DELIVERY, OR UNTIMELY DELIVERY OF ANY CONTENT, INFORMATION OR MATERIAL.
WE DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- Limitation Of Liability
IN NO EVENT SHALL WE BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (II) YOUR ACCESS AND USE OF OUR SERVICES; OR (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICES FOR ANY REASON, OR OTHERWISE ARISING OUT OF THE USE OF OUR SERVICES, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND THEIR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS OR NON-PERFORMANCE OF THIRD PARTIES.
OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED $100.
CERTAIN STATE OR JURISDICTIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
- Any notice or other communication required or permitted under this Agreement shall be sufficiently given if delivered in person or sent by one of the following methods: (1) registered U.S. mail, return receipt requested (postage prepaid); (2) certified U.S. mail, return receipt requested (postage prepaid); or (3) commercially recognized overnight service with tracking capabilities. All notices must be sent to the address as shown in the Service Proposal, or to such other address or number as shall be furnished in writing by any such party.
- Force Majeure.
- Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or of the public enemy; U.S. or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.
- Choice Of Law; Venue; Limitation Of Actions.
- This Agreement will be governed and interpreted by the laws of the jurisdiction of the State of New York, without regard to its conflicts of law provisions. The parties hereby irrevocably and unconditionally agree to the sole and exclusive jurisdiction of the state courts and U.S. federal courts having jurisdiction in the State of New York for any dispute arising out of this Agreement.
- Entire Agreement.
- This Agreement and all exhibits set forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein. This Agreement may be amended only by a written agreement signed by both parties.
- In the event that a court finds any provision of this Agreement invalid and/or unenforceable, the parties agree that the remaining provisions shall remain valid and in force.
- Neither party shall be deemed by mere lapse of time (without giving notice or taking other action hereunder) to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
- Any obligation of the parties relating to the following provisions shall survive termination or expiration of this Agreement: service fees, billing, payment, intellectual property rights, license, term, termination, disclaimer of warranties, limitation of liability, indemnification, confidentiality, choice of law and venue, limitation of actions and disputes.
- Neither party may assign this Agreement or any of its rights or obligations or the license hereunder, without the prior written consent of the other party.