TERMS AND CONDITIONS OF SERVICE
Engagement. Client, by its execution hereof, engages Struoweb as an independent consultant to perform the services under the Plan selected by Client on the reverse side of these Terms and Conditions of Service (“Terms and Conditions”). These Terms and Conditions, together with the terms and provisions contained on the reverse side of the Terms and Conditions, are hereinafter referred to collectively as the “Agreement”).
Term. This Agreement shall become effective on the date accepted by Struoweb on the reverse side of this Agreement and shall continue on a month-to-month basis until terminated by either party with at least ten (10) days prior written notice (the “Term”). This Agreement may be terminated immediately by Struoweb if (i) Client fails to pay any fees as and when due hereunder, or (ii) Client ceases to cooperate with Struoweb or otherwise makes it difficult for Struoweb to perform the services contracted hereunder, or (iii) Struoweb discovers that Client is utilizing its website for any purpose that violates federal, state or local law.
Fees and Payments. During the Term, Client agrees to pay in full when due the monthly fees for the service selected by Client on the reverse side of this Agreement. The first monthly fee shall be due upon acceptance of this Agreement by Struoweb. All subsequent monthly fees under this Agreement shall be due on the same calendar day of each successive month (i.e., if the Agreement is accepted on May 10, subsequent monthly fees payments shall be due on June 10, July 10, etc.). Client acknowledges and agrees that any fee not paid within ten (10) days after its due date shall bear interest at the rate of 1.5% per month from such tenth (10th) day until paid. Once paid, all fees shall be nonrefundable. Struoweb reserves the right, at any time and from time to time, to increase the monthly and other fees charged by Struoweb for the services provided hereunder upon forty-five (45) days’ prior notice to Client.
Client Authorization. Client authorizes Struoweb to (i) access without limitation Client’s website to analyze its content and structure; (ii) to alter Client’s website as necessary or desirable in Struoweb’s sole and absolute discretion for purposes of search engine optimization, and for any other purpose agreed to by Client and Struoweb; (iii) upload such pages and content to the Client’s website as Struoweb deems appropriate in its sole and absolute discretion for purposes of search engine optimization; (iv) make use of all of Client’s logos, trademarks, copyrights, website images and similar items to create informational pages and for other uses deemed necessary by Struoweb to provide the services subscribed for hereunder; and (v) communicate with third parties as Struoweb deems necessary in its sole discretion to perform Struoweb’s services hereunder, including but not limited to Client’s web designer.
Client Consent to Installation of Telephone Tracking Number. Client consents to the placement of a telephone tracking number on Client’s website and on off-site videos, and further consents to the recording of all telephone calls that are routed through the telephone tracking number. Client understands that the telephone tracking number will remain on the Client’s website and embedded in Client’s offsite videos during the Term. Within a reasonable time after the termination of this Agreement, the telephone tracking number will be removed from Client’s website, but will remain on Client’s off-site videos. Client may request that Client’s off-site videos be removed by Struoweb, but understands that Struoweb will not separately remove the embedded tracking number from Client’s off-site videos, even upon termination of this Agreement. At the termination of this Agreement, and provided that Client has paid in full all of the fees due hereunder, including any interest due on the fees payable hereunder, Client will port the telephone tracking number to Client at no cost to Struoweb. Upon termination of this Agreement, Client shall have sixty (60) days from the effective date of termination to move its website to another website host. If Client has not, by the end of such sixty (60) day period, moved its website to a new website host, Struoweb shall have the authority and right, without notice to or the consent of Client, to remove Client’s website from Struoweb’s server, with no liability to Struoweb for such removal.
Client Acknowledgments. Client makes the following acknowledgments: (i) that Struoweb cannot control or exert influence over the policies or operations of any search engine companies or any other third parties regarding the content of the sites that are accepted by the search engine companies or other third parties; (ii) that Struoweb will not be responsible for any changes or alterations to Client’s website made by Client or any third parties that negatively impacts the rankings or visibility of Client’s website; (iii) that because the results of the services to be provided by Struoweb hereunder depend upon a number of factors outside of Struoweb’s control, Struoweb cannot guaranty the results of its services to Client; (iv) that because the utilization of certain keywords and key phrases are very competitive, and because search engines are constantly changing search engine ranking algorithms, Struoweb cannot guaranty that Client’s website will achieve the highest search result position in any search engine or consistent search result positions in the top rankings; (v) that certain search engine companies may affect the rankings of new and/or unproven companies (for example, “sandboxing”); (vi) that search engines will,
from time to time, drop listings without specific causes; and (vii) that while Struoweb shall
use commercially reasonable diligence to promptly submit and/or effect a change in rankings of Client’s website, some search engines may take several months or longer to list and/or effect a change in rankings.
Force Majeure. Struoweb shall not be liable for, nor considered to be in breach under this Agreement due to, delay or failure to perform under this Agreement as a consequence of any conditions that are beyond Struoweb’s reasonable control after exercising commercially reasonable efforts.
DISCLAIMERS OF LIABILITY. IN ADDITION TO ANY DISCLAIMERS OF LIABILITY FOUND ELSEWHERE IN THESE TERMS AND CONDITIONS, Struoweb SHALL NOT BE LIABLE TO CLIENT FOR INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, LOST PROFITS, WHETHER FORESEEABLE OR BASED ON BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY OR NEGLIGENCE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED IN THIS AGREEMENT. Struoweb MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR THIRD PARTY CONTENT OF, OR SOFTWARE, EQUIPMENT OR HARDWARE OBTAINED FROM, ANY THIRD PARTIES. Struoweb will not be responsible for results due to any alterations or overwrites made to a website by another party, as Client understands that this can adversely affect the search engine rankings of Client’s website(s), nor for the effect of Client linking to any particular websites without the prior consultation and approval of Struoweb.
Client Representations and Warranties; Indemnity. Client represents and warrants to Struoweb the following: (i) that Client owns the URL listed on the reverse side of this Agreement; and (ii) that Client owns or has the absolute and unrestricted right to use and to grant to Struoweb the right to use all graphics, photos, designs, intellectual property and artwork, and any element or elements thereof, that Client furnishes to Struoweb. Client indemnifies and holds harmless Struoweb and Struoweb’s owners, officers, directors and employees from and against any and all liabilities, costs and expenses (including but not limited to reasonable attorneys’ fees and costs incurred at trial, appeal or other legal proceeding) arising out of or with respect to any breach by Client of any of the foregoing representations and warranties, or he breach of any representations and warranties contained elsewhere in this Agreement, and/or the failure by Client to comply with any covenant of Client contained in this Agreement. If Client is a company, the individual signing this Agreement represents and warrants that the execution of this Agreement has been authorized by all necessary action of the Client, and that the undersigned has full authority to sign on behalf of and bind the Client hereunder.
Governing Law/Arbitration. This Agreement shall be governed by and under the laws of the State of Florida without regard to conflict of laws principles. Any controversy or claim arising out of or under, or relating to, this Agreement, including but not limited to authority to sign this Agreement, contract formation issues, fraud or the breach of any provision hereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, in any arbitration hereunder, the arbitrator shall have no authority to award any relief outside the scope of all disclaimers stated in this Agreement. All arbitration proceedings brought hereunder shall be located exclusively in Miami-Dade County, Florida.
Miscellaneous. This Agreement may not be assigned by Client without the prior written consent of Struoweb which may be withheld or denied by Struoweb in its sole and absolute discretion. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto. The prevailing party in any suit, action or proceeding (including, but not limited to, an arbitration proceeding) arising out of or in connection with this Agreement, shall be entitled to an award of reasonable attorneys’ fees, costs and disbursements incurred by it in connection therewith. Any failure by Struoweb to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. All previous communications about the subject matter of this agreement, either oral or written, are hereby abrogated and withdrawn, and this agreement constitutes the entire agreement between Client and Struoweb with regard to the subject matter hereof. No terms, conditions, understandings, or agreements purporting to modify or vary the terms of this document shall be binding unless hereafter made in writing and signed by both Client and Struoweb. There are no third party beneficiaries of or to this Agreement or any of the provisions hereunder. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument. Any signature to this Agreement that is transmitted by fax or email transmission shall be considered an original signature for all purposes. It is the intent of the parties hereto that all provisions of this Agreement shall be enforced to the fullest extent possible. Accordingly, if any arbitrator determines that the scope and/or operation of any provision of this Agreement are too broad to be enforced as written, the parties hereto intend that the arbitrator should reform such provision to the minimum extent necessary to render such provision enforceable. If, however, any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future law, and not subject to reformation, then such provision shall be fully severable, and this Agreement shall be construed and enforced as if such provision was never a part of this Agreement. The rule of construction that an ambiguity in a contract will be construed against the drafter is hereby waived by both parties hereto.