Terms & Conditions

OneIMS:  Master Services Agreement

THIS CLIENT MASTER SERVICES AGREEMENT (“CMSA”) is entered into by you (“Client”) as evidenced by your use of the services (defined below).  OneIMS and Client agree to the following terms and conditions:

Article 1.

Definitions

“Client” means Client’s corporate subsidiaries, as well as corporate parents, affiliates and other related entities approved by OneIMS to receive Services under this CMSA.

“Confidential Information” includes, but is not limited to, proprietary technical data, know-how, and/or trade secrets that, but for this CMSA, the Party would have no right to receive disclose or use.  It does not include information which, at the time of disclosure or thereafter is generally available to or known by the public, was available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, or both OneIMS and Client agree it is not Confidential Information. 

“Disclosing Party” means the Party providing confidential information and its representatives.

“Good Faith” means fair and honest dealing so as to not destroy the right of the party or parties to receive the benefits of the contract. 

“Intellectual Property” means all innovations, concepts and ideas (whether patentable or not), improvements, discoveries, designs, plans, drawings, blueprints, patent applications, patents, patents rights, trademarks, trademark rights, trade names, trade name rights, service marks, product names, brands, logos, trade dress and other distinctive identifications used in commerce, the goodwill associated with any of the forgoing, service mark rights, copyrights (other than copyrights in “off-the-shelf” computer programs), copyrightable works and derivatives thereof, original works of authorship, computer code of any type (whether source code or object code) in any programming or markup language underlying any type of computer programming (whether application software, middleware, firm ware or system software) including, but not limited to, applets, assemblers, compilers, design tools, user interfaces, databases and fixations thereof, domain name registrations, all applications and registrations for any of the foregoing, trade secrets, confidential and proprietary information, know-how, formulae, methods, schedules, processes and other intangible proprietary rights.

“OneIMS” means OneIMS, LLC., an Illinois Limited Liability Company having its principal place of business at 8833 Gross Point Rd. Suite 202, Skokie, IL  60077 and its affiliates and subsidiaries. 

“Party” mean’s singularly, OneIMS or Client, and, collectively, “Parties” shall mean OneIMS and Client.

“Payment Schedule” means a written document from OneIMS to the client identifying the payment amount and due dates. 

“Receiving Party” is the Party Receiving confidential information and its representatives. 

“Recruit” includes solicited applications for jobs but does not include unsolicited applications for jobs, responses to public advertisements, or candidates submitted by recruiting firms, without any direct contact between Client and OneIMS employees.

“Services” means the work, jobs, services, goods, deliverables, duties and activities to be performed or provided by OneIMS as determined by the Proposal and as limited by Section 4.2 of this CMSA.

“Proposal” means any written document or online click-through document provided by the Client to OneIMS containing the Services, as defined by Section 4 of this CMSA. 

“Subcontractor” means any company or entity with whom OneIMS enters into an agreement to perform any of the Work or to whom OneIMS otherwise delegates any of the Work.

 

“Unique Client Content” is defined for this CMSA as textual or graphical content which has been provided to OneIMS by Client and is of Client origin, or graphical content created by OneIMS specifically for the Services.

“Additional Proposal ” means a written order by Client to OneIMS for request for work not defined by Section 4.2 of this CMSA. 

“Writing”/”Written” includes handwritten, printed and mixed paper documents; electronic documents; and facsimiles. 

 

Article 2.

Scope of the CMSA

2.1 OneIMS’s Work.  This CMSA shall control and govern all Services undertaken by OneIMS and shall define the rights, obligations and liabilities of OneIMS and Client.  Client agrees to provide OneIMS with access to its Website, technical data, know-how and proprietary information that is reasonably necessary for OneIMS to fulfill its obligations under this CMSA.

2.2 Subcontracting.  OneIMS is free to delegate any Work under this CMSA to any third-party without receiving prior written approval of Client.

2.5 Exclusivity.  This CMSA is a non-exclusive agreement between the Parties

Article 4.

Services, Obligations and Performance

4.1  Proposal.  All Services provided by OneIMS under this CMSA will be described in one or more Proposals.  The Proposal must specify the specific service or services ordered from OneIMS as found in Section 4.2 of this CMSA. 

4.2 Services and Obligations.  The Proposal must list one or more Services including Web Design and Maintenance, Search Engine Optimization and Pay Per Click.  The obligations of OneIMS are limited to the obligations, duties, timing, and natural limitations for the service or services in the Proposal as described in 4.2(A)(1) for Web Design and Maintenance, 4.2(B)(1) for Search Engine Optimization, and 4.2(C)(1) for Pay Per Click.  The obligations and duties of the Client are limited to the obligations and duties for the service or services in the Proposal as described in 4.2(A)(2) for Web Design and Maintenance, 4.2(B)(2) for Search Engine Optimization, and 4.2(C)(2) for Pay Per Click.

4.2(A)(1) One IMS Obligations for Web Design and Maintenance.  If Web Design and Maintenance is listed in the Proposal, OneIMS agrees to the following:

(a) Domain Registration: OneIMS will secure a domain name for the Client at the Client’s request. Domain name will be registered through OneIMS and will be registered in the Client’s name and become property of the Client once final payment is made. If the Client already has a domain name, OneIMS will coordinate redirecting the address to the new host. Should the Client desire a specific domain name, which is already owned by another party, negotiations for said domain name must be undertaken by the Client.

(b) Text. Copy for web site must be supplied by the Client in a .doc format or .txt format via disk or email attachment. Otherwise, if not supplied on disk or via email, there will be an additional charge for typesetting and creating text.

 

(c) Photos. Photos and other misc. graphic images must be supplied by Client.

 

(d) Scanning. This CMSA contemplates scanning up to 20 images for the Client. It is contemplated that this will accommodate the needs of most Clients.

 

(e) Installation. Finished site will be hosted by OneIMS unless otherwise specified in writing.  Hosting is not included in the contract price for website design unless specified in the Proposal. Hosting services require a separate Proposal with OneIMS or the hosting service of the Client’s choice. If OneIMS hosts Client’s Website, Client shall be billed on a monthly basis at a rate specified in the proposal. The Client agrees to select a hosting service, which allows OneIMS full access to the Client’s account via FTP. The Client will be solely responsible for any and all hosting service charges. If Client has no hosting company, OneIMS will assist Client in securing hosting. Client is responsible for all costs incurred with hosting fees.

 

(f) Cross Browser Compatibility. This CMSA contemplates the creation of a web site viewable by the newest versions of Firefox, Safari, Chrome and Microsoft Internet Explorer.  Compatibility is defined herein as all critical elements of each page being viewable in both browsers. Client is aware that some advanced techniques on the Internet, however, may require a more recent browser version and brand or plug-in. Client is also aware that since new browsers are constantly being developed, the new browser versions may not be compatible to the site that has been developed by OneIMS.  In the absence of a Maintenance Agreement, time spent to redesign a site for compatibility due to the introduction of a new browser version will be separately negotiated and in addition to the base price of this CMSA.

 

 

4.2(A)(2) Client Obligations for Web Design and Maintenance.  If Web Design and Maintenance is listed in the Proposal, the Client agrees to:

(a) Provide OneIMS all necessary access to its Website for the purposes of uploading new pages and making changes for the purpose of optimization or approval to go through a third party.

(b) Authorize OneIMS use of all Client logos, trademarks, Website images, etc., for use in creating informational pages and any other uses as deemed necessary by OneIMS.

(c) The content of the web pages will be supplied by the Client and executed as specified by the Client. In case the Client desires additional standard web pages beyond the original number of pages discussed per the proposal, the new price for the additional pages will be negotiated.

 

(d) Where custom graphic work is requested that goes beyond the scope described, it will be billed at the hourly rate specified in the proposal. Reasonable additions or changes will be performed at no cost, but if the change or addition requires a significant amount of additional work, the hourly rate in the Proposal shall apply. OneIMS will determine what is “reasonable” in such instances.

 

(e). As outlined in the Proposal, Client agrees to pay OneIMS 50% of the total cost at the start of the CMSA. If Client cancels the CMSA at any point, OneIMS reserves the right to collect the remaining balance, or a reasonable fee for the work completed. 

 

 

4.2(B)(1) Search Engine Optimization.  If Search Engine Optimization (“SEO”) is listed in the Proposal, OneIMS agrees to the following:

(a) Research keywords and phrases to select appropriate, relevant search terms.  Number of keywords will be specified in the Proposal. 

(b) Edit various HTML tags and page text as necessary prior to submission to selected Search Engines.

 

(c) Create, as required, additional web pages for the purpose of “catching” keyword/phrase searches.

 

 

(e) Create positioning reports for Website and any associated pages showing rankings in the listed Search Engines and under which keywords.

 

(f) If established through a separate Work Order to this SEO, OneIMS will establish Advertising of certain Client materials on websites owned and operated by OneIMS for the purpose of delivering leads to Client and/or traffic to Client’s Website.

 

(g) If established through a separate Work Order to this SEO, OneIMS will provide a username and password for Client to access OneIMS dealer services.  Client agrees not to share usernames and passwords with unauthorized users. 

 

(i)  Under the terms of this CMSA, the Client realizes the limitations of SEO and accepts and acknowledges the limitations of OneIMS over the Search Engines.  Specifically, Client acknowledges and agrees OneIMS shall not be held liable or in any capacity responsible for any of the following limitations which accompany and are a part of Natural Law SEO:

 

(1) OneIMS has no control over the policies of Search Engines with respect to the type of sites and/or content that they accept currently or in the future.  Client’s Website may be excluded from any directory at any time at the sole discretion of the Search Engine.  Should Client’s Website be dropped from a respective Search Engine, OneIMS will resubmit those pages that have been dropped from the index.

 

(2) Due to the competitiveness of some keywords and phrases, ongoing changes in Search Engine ranking algorithms and other competitive factors, OneIMS does not guarantee top or any other position or consistent top ten (10) positions for any particular keyword, phrase or term. 

 

(3) Client accepts and agrees that some Search Engines may take as long as two (2) to four (4) months, and in some cases longer, after submissions to list its Website.

 

(4) Some Search Engines stop accepting submissions for an indefinite period of time. 

 

(5) Periodically, Search Engines drop listings for no reason and with no advanced warning.  Often, these same listings reappear without additional submissions.  Should the Website not reappear, OneIMS will re-submit the Website based on current policies of the Search Engine in question.

 

4.2(B)(2) Client Obligations for Search Engine Optimization.  If Search Engine Optimization (“SEO”) is listed in the Proposal, the Client agrees to:

 (a) Provide OneIMS all necessary access to its Website for the purposes of uploading new pages and making changes for the purpose of optimization or approval to go through a third party.

(b) Authorize OneIMS use of all Client logos, trademarks, Website images, etc., for use in creating informational pages and any other uses as deemed necessary by OneIMS for Search Engine positioning and optimization.

 

(c) If Client’s site is light in textual context, Client will provide additional relevant text context in electronic format for the purpose of creating additional web pages.  As requested, Client agrees to provide content, for example 250 word synopses or descriptions about each of their keyword phrases.

 

(d)  Client will be responsible for registration and renewal of any domain names chosen and purchased by Client through OneIMS’s domain registration system or through a third-party website.

 

(e)  OneIMS is not responsible for any damage created by the Client or agent of the Client for independently edited or updated webpages after completion of the site.

(f)  The Client agrees to select a web hosting service that allows OneIMS full access to the web site.

 

4.2(C)(1) Pay Per Click.  If Pay Per Click is listed in the Proposal, OneIMS agrees to the following: 

(a) OneIMS will research keywords most relevant to the Client’s business and create different ad groups based on the services offered by Client.

(b) OneIMS will create, with support of the client, compelling ad copies to maximize click through rate.

 

(c) Cost per click is assigned to ad groups based on search engine estimates.

 

(d) Daily campaign budget is assigned PPC campaign based on the Client’s monthly budget.

 

(e) Client is given an overview of the PPC campaign before it is set to go “live”.

 

(f) Regular optimization is performed on the Client’s account in order to ensure the Client is getting the most clicks and top positioning on search engines. Optimization includes and is not limited to adding and deleting keywords and ad copies, raising or reducing cost per click, raising or reducing the daily budget, etc.  OneIMS tries it’s best to get Clients on the top of search engines, however, OneIMS does not guarantee top placement. Top placement is subject to several rules and regulations determined by the search engines themselves.

 

(g)  OneIMS does not guarantee a conversion after a click is reported to the Client’s PPC ads. Conversion is subject to consumer behavior.

 

 

4.2(C)(2) Client Obligations for Pay Per Click.  If Pay Per Click is listed in the Proposal, the Client agrees to:

(a) Client understands that prices are service fees and do not include the purchase of the sponsored listings.  Any amount of money that Client wishes to go towards the sponsored listings purchases must be paid over and above the service fee.  It is completely up to Client in regards to how much to budget in sponsored listing purchases every month.

 

(b) Client understands that if at anytime a search engine ceases to offer sponsored listings or, if at anytime for any reason a search engine refuses service to the company which you represent or refuses to provide a sponsored listing to this company, that OneIMS will not be held responsible.  You also agree that such a refusal of service to this company by a search engine may also be grounds for termination of this CMSA by OneIMS.

 

(c) Client ensures that all websites are submitted for our services in Good Faith. This includes that the website is compliant with Search Engine content policy; that the submitter of the website is the owner, operator or authorized agent for the said website; the website/URL are functional and provide adequate content as to the services and/or products made available through the said website. Verification may be demanded if necessary. 

 

(d) Price has already been negotiated with client and payment is described in a separate proposal.  Client agrees to pay OneIMS 100% of the total cost at the start of the CMSA. This includes budget and service fee costs. If Client cancels the CMSA at any point, OneIMS will immediately seize all work for Client, and shall be reimbursed for time already put into work for Client. OneIMS will not reimburse the service fee, but will return whatever portion of the budget for sponsored listings that has not been used. 

 

4.3 Additional Work.  Upon mutual agreement and written consent of OneIMS and Client, Client may submit an Additional Proposal to OneIMS with or in addition to the Proposal that includes services not described in Section 4.2. The Additional Proposal must be reasonably related to the service or services selected in the Proposal and must reasonably describe the scope of the work obligations and includes, but is not limited to, display advertising, retargeting, inbound marketing, local search and social media.  An Additional Proposal becomes binding on OneIMS only after an authorized representative of OneIMS has responded to Client in writing confirming the Additional Proposal and indicating the payment..  Once confirmed by OneIMS, the additional work in the Additional Proposal shall become part of the Proposal and all provisions of this CMSA pertaining to the Services in a Proposal shall apply to the Additional Proposal. 

4.4  Performance.  The manner and means for accomplishing the Services shall be determined by OneIMS.  OneIMS is an independent contractor with the authority to control and direct the performance and supervision of the services and assigned work.  It is expressly agreed that none of the personnel furnished by or on behalf of OneIMS shall be deemed employees, servants, agents or third-party contractors of Client.  OneIMS shall perform in a professional manner the services as detailed in this CMSA, Proposal, and in any Additional Proposal.  OneIMS agrees to perform in a diligent, efficient, competent and skillful manner commensurate with the industry standards and to devote resources as necessary to perform the services required under this CMSA.  The time required will be outlined in the Proposal and is considered an estimate.  OneIMS reserves the right to increase or decrease the timeframe for completion.

 

 


Article 5.

Terms of Payment

5.1 Pay Rates.  OneIMS shall be compensated for its services at rates to be agreed to by the OneIMS and Client prior to entering this CMSA. The rates of pay shall be specified in the Proposal.  Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the efforts of any or both of the Parties.  If the Parties cannot agree on applicable pay rates, then OneIMS has no duty to accept the Proposal or any proposed modification.  Client agrees to reimburse OneIMS for any critical Client requested expenses necessary for the completion of the Services.  If Client fails to fulfill its obligations under this CMSA and the work is not completed, the Client is obligated to pay for the time spent based on OneIMS’s current hourly rate. 

5.2 Time of Payment.  Time for payment must be specified in the Payment Schedule.  If payment is specified as a standard one-time payment, 100% of the payment is required upon signing of this CMSA.  If payment between Client and OneIMS are specified is monthly, such payments will go into effect upon signing and 100% of the payment must be paid prior to any services rendered. 

5.3. Cancellation and Suspension.  Client agrees that the payment for services cannot be retracted or refunded once the services have been provided.  In the event the Client cancels the Proposal without a minimum of thirty (30) days notice before the services are complete or requests OneIMS’s services be suspended for more than sixty (60) consecutive days, Client must submit 100% of the payment agreed upon within thirty (30) days after such cancellation or suspension.

5.4 Types of Acceptable Payment. OneIMS will accept payments made by credit card, debit card or electronic transfer only unless agreed to in writing by Client and OneIMS.

5.5 Nonpayment.  For payments not paid within (30) days of the date required in the Payment Schedule, OneIMS reserves the right to charge Client a late penalty charge of one and a half percent (1.5%) per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less.  In addition, OneIMS, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate the Services until such payment is received and may decide not to accept additional orders from and or/seek collection of all amounts due, including reasonable legal fees and costs of collections.  OneIMS shall have no liability to Client for any such suspension or termination of Services, or non-acceptance of orders.

5.6 Disputed Payment.  In the event Client is withholding payment due to OneIMS pursuant to this CMSA, upon resolution of any dispute in favor of the OneIMS, then Client shall pay to OneIMS within five (5) Days from the resolution of such dispute an equal amount to the amount withheld, together with interest on such amount at an annual rate of twelve percent (12%) or the maximum non-usurious rate, whichever is less, from and including the date withheld payment was originally due.

Article 6.

Term and Termination

6.1 Term of Agreement.  This CMSA is valid for a period of three (3) months (the “Initial Term”) from the Effective Date and shall automatically renew monthly thereafter until thirty (30) days after any party provides written notice of termination.

6.2 Termination.  This CMSA automatically terminates upon completion of the service or services in the Proposal.  Either party may terminate this CMSA for convenience by providing at least (30) days prior Written Notice to the other.  In the event of a material breach of this CMSA, the non-breaching party may elect to terminate the CMSA after reasonable notice of the breach and reasonable notice of its intention to terminate if the breaching party fails to cure the breach or otherwise satisfy the non-breaching party within ninety (90) days.  A material breach includes, but is not limited to, failure to comply with Client Obligations as outlined in Article 4; refusal to pay any increased hourly rates, costs, and expenses; failure to follow OneIMS’s advice on any matter material to the service or service in the Service Notice; or if circumstances arise that would render OneIMS’s continuing representation unlawful or unethical. 

6.3 Unpaid Charges at Termination.  Upon termination of OneIMS’s services, whether terminated by the Client or by OneIMS, all unpaid charges are immediately due and payable to OneIMS.

6.4 Survival Beyond Termination.  All provisions relating to audit, choice of law, venue, dispute resolution, indemnity, insurance, title and warranty, confidentiality, non-soliciation and intellectual property ownership shall survive any termination of this CMSA.

6.5 Title to Deliverables Upon Termination or Completion of Work.  Upon payment in full to OneIMS of all sums owed to OneIMS hereunder, and upon Termination of this CMSA or completion of the service or services in the Proposal, whichever comes first, sole and exclusive world-wide rights, title, and interest in all Unique Client Content, intellectual property, documents, drawings, computer printouts, and samples developed by OneIMS  shall vest in Client and be delivered to the Client in a timely manner; provided that Client shall not have right, title or interest in any information and knowledge known by OneIMS prior to disclosure by OneIMS to client and, except to the extent limited in Article 3.1, any knowledge of OneIMS of general application not specific to the service or services provided per the Proposal.

ARTICLE 8

Indemnities, Liabilities, and Warranties

8.1 OneIMS Warranties and Liability.  OneIMS warrants and represents that it possesses the special skill and professional competence, expertise and experience to undertake the obligations imposed by this CMSA and will utilize best practices in its design and implementation of theservices.    OneIMS’s warranty obligations will be limited to the assignment to Client of all warranties and guarantees related to this CMSA and will not extend beyond the terms outlined in this CMSA. Notwithstanding anything to the contrary contained elsewhere herein, no member or employee of OneIMS shall be liable to the Client for any consequential, incidental, special, exemplary, indirect or punitive damages of any kind or character, including, but not limited to, loss of use, loss of profit, loss of revenue, loss of business, or lack of leads whenever arising under this CMSA or as a result of, relating to or in connection with the service or services in the Proposal governed by this CMSA however caused and regardless of legal theory or foreseeability, including but not limited to website downtime, the content of any web site or pages, technical malfunction, service provider failure, telecommunications failure, service interruption, computer error, loss of data, or other injury damage or disruption to client even if OneIMS has been alerted to the possibility of such damages.  No claim shall be made by any member of either OneIMS or Client against the other, regardless of whether such claim is based or claimed to be based on negligence (including sole, joint, active, passive, concurrent or gross negligence), fault, breach of warranty, breach of contract, statute, strict liability or otherwise.  OneIMS makes no warranty of merchantability of fitness for a particular purpose, including without limitation, the success of the services, the Performance of the Services, Uninterrupted operation, or error-free operation.

8.2 Client Warranties and Liability.  Client agrees that any material submitted will not contain anything leading to an abusive or unethical use. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, any illegal activity, spamming, advocacy of an illegal activity, and any infringement of privacy. The entire risk as to the quality and performance of the Services is with the Client. Client accepts that, given the dynamic nature of all search engines, the Internet and competing entities, it is not possible for OneIMS to guarantee specific results of the Services.

8.3 Limitation of Liability: THE PARTIES AGREE THAT ANY AND ALL LIABILITY OF EACH TO THE OTHER FOR ANY AND ALL DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS CMSA FROM ANY unintentional CAUSE, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY SHALL NOT, IN THE AGGREGATE, EXCEED THE FEES PAID BY CLIENT UNDER THIS CMSA.

8.4 Indemnification. Client agrees to indemnify and hold OneIMS and the owners and operators of OneIMS and its affiliates harmless from and against any losses, costs, damages or expense resulting from claims or actions arising out of or in connection with Client’s website content,  elements furnished by the Client, Client’s breach of any agreement, representation or warranty hereunder, including, without limitation, claims for infringement of copyright or other intellectual property rights and violation of rights of privacy and publicity.

Article 9.

Insurance

OneIMS and Client shall each procure and maintain, or cause to be procured and maintained, at the sole expense of each Party and for the duration of this CMSA insurance policies with financially responsible insurance companies, effective through primary and excess coverage, in amounts customary for the nature of this CMSA.  

Article 10:  Force Majeure

10.1  Neither party shall be liable to the other party for any delay in performance or any failure to perform any of its obligations (except payment obligations), under this CMSA during if the party’s performance is subject to an unforeseeable event beyond both party’s reasonable control, occurring without fault or negligence of either party including acts of nature, civil disorder, acts of war or armed conflict, acts of terrorism, curtailment of transportation facilities, strike, riot, or the intervention of any governmental authority that make it illegal or impossible for the party to perform its obligations under this CMSA (“Event of Force Majeure”). 

10.2  The party experiencing the Event of Force Majeure must notify the other party with reasonable promptness of the existence of the Event of Force Majeure and the probable duration thereof, and shall provide the other party from time to time with correct information concerning the Event of Force Majeure.  The party experiencing the Event of Force Majeure shall take all reasonable actions to remove the cause of Force Majeure. 

Article 13:  Miscellaneous Terms

3.1 Confidential Information.  In the performance of the Services, Client and OneIMS may have access to Confidential Information, which may be designated as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential.  Confidential information may not be shared with third parties unless such disclosure is to personnel of Client or OneIMS, including employees, agents and subcontractors, on a need-to-know basis in connection with its performance of this CMSA, so long as such personnel have agreed to treat such Confidential Information under terms at least as restrictive as those herein.  Each party agrees to take the necessary precautions to maintain the confidentiality of Confidential Information of a like-kind nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality.  The foregoing shall not include information, which (a) was known by one party prior to its receipt from the other or is or becomes public knowledge without the fault of the recipient, (b) is received by the recipient from a source other than a party to this CMSA, or (c) a party is required to disclose in response to an order by a court or governmental agency, provided that advance notice of the disclosure is provided to other party. 

 

3.2 Intellectual Property Ownership.  Client retains full ownership of any intellectual property and Unique Client Content.  The Client represents to OneIMS and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks or other artwork furnished to OneIMS are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements.

13.3 Advertising and Publicity.  Client hereby grants OneIMS a continuous, world-wide license to use and display Client’s name, marks, codes, drawings, specification, case studies, intellectual property, and Unique Client Content in any advertising, press release, promotional effort or publicity of any kind unless the Client and OneIMS enter into a written agreement to the contrary.  Client agrees to feature “Powered by OneIMS” on the product or products of the Services performed by OneIMS under the Proposal.

13.4 Non-Solicitation.  During the term of this CMSA and for a period of one year thereafter, Client will not Recruit, directly or indirectly, any individual employed by OneIMS.  If Client breaches this clause and hires a OneIMS employee, Client will pay to OneIMS two-hundred and fifty thousand dollars ($250,000) as a fee for the benefit obtained by Client and to compensate OneIMS for its expenses in hiring and training a replacement employee. 

13.5 No Partnership.  This CMSA is not intended by the parties to, and shall not constitute, create give effect to, or otherwise imply a joint venture, pooling agreement, partnership, or formal business organization of any kind between the parties. 

13.6  Attorney’s Fees.  If OneIMS prevails in a lawsuit, action, arbitration or other proceeding of any nature whatsoever is instituted in connection with any controversy arising out of this CMSA or to interpret or enforce any rights under this CMSA, OneIMS shall be entitled to reimbursement of reasonable attorney fees and costs incurred to enforce its rights under this CMSA.

13.7 Expenses.  Each Party will pay their own respective costs and expenses incurred in connection with this CMSA and the transactions contemplated hereby.

13.8 Dispute Resolution. The Parties agree to resolve any and all disputes, claims or controversies arising out of or relating to this CMSA, whether in contract, tort, or otherwise through confidential, final and binding arbitration in Chicago, Illinois, in accordance with principals and procedures of JAMS, (formerly Judicial Arbitration and Mediation Services, Inc.) and per the decision of an accredited arbitrator acceptable to both parties.  By agreeing to submit all disputes, claims and controversies to binding arbitration, each of the Parties expressly waives its rights to have such matters heard or tried in a court before a judge or jury or in any other tribunal.  Any award shall be final, binding and conclusive upon the Parties, subject only to judicial review provided by statute, and a judgment rendered on the arbitration award may be entered in any state or federal court having jurisdiction thereof.  Notwithstanding the foregoing, each Party agrees that before undertaking the aforementioned arbitration, they shall submit all disputes, claims or controversies to a mutually agreeable mediator in Chicago, IL in an attempt to informally resolve said disputes, claims or controversies without the need for arbitration.

13.9 Choice of Law.  The Parties agree that any dispute or controversy arising from or relating to this CMSA and the resulting relationship between the parities; whether in contract, tort, or otherwise; whether preexisting, present or future; and including statutory, common law, and equitable claims between Client and OneIMS shall be governed by the laws of the state of Illinois, without regard to conflicts of law.

13.10 Service of Process.  Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Article 13.25 of this CMSA.

13.11 Limitation Period.  Neither party may institute any action in any form arising out of this CMSA more than one (1) years after the cause of action has arisen, or in the case of nonpayment, more than one (1) years from the due ate of the last payment. 

13.12 Judgment Enforceability.  Any final award rendered against a Party in any action or proceeding shall be conclusive as to the subject of such final award and may be enforced in other jurisdictions in any manner provided by law.

13.13 Offensive Material.  OneIMS hereby reserves the right, at its sole discretion, to terminate this CMSA should it be determined that the Website involves or contains spam or offensive material.  For purposes of this CMSA, offensive material includes content which is pornographic, illegal in the State of Illinois, racially, sexually, faith-based or gender insensitive, politically or otherwise inflammatory or that which the OneIMS determines is in poor taste.  Should OneIMS determine that the Website contains Offensive Material, OneIMS will then send notice of termination to Client pursuant to the terms outlined in Article 13.25.  It is also understood that the OneIMS will not publish information over the Internet which may be used by another party to harm another. OneIMS will not promote or advertise a pornography web site for the Client. OneIMS reserves the right to determine what is and is not pornography. 

13.14 Succession and Assignment.  This CMSA shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.  The Client may not assign either this CMSA or any of its rights or interests hereunder without prior written approval of the other Party.

13.15 Severability.  Any term or provision of this CMSA that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any situation in any other jurisdiction.

13.16 Amendments.  This CMSA may not be modified or amended, except by a written document signed by all Parties hereto.  The terms of this Article may not be waived or orally amended.

13.17 Waivers.  The Parties may waive any of the conditions contained herein or any part of the obligations of the other Parties hereunder, but any such waiver shall be effective only if in writing and signed by the Party waiving such conditions or obligations.  No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

13.18 Updates. OneIMS reserves the right to update its CMSA at any time, effective upon posting an updated version located at terms@oneims.com; however, Client’s rights and obligations shall be as provided in the version of the CMSA executed by Client or available to Client at the time of Client’s purchase of Services or, when applicable, Client’s renewal of Services.

13.19 Counterparts. If a signature block is appended hereto, this CMSA may be executed in counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.

 

13.20 Headings.  The descriptive headings contained in this Agreement are inserted for convenience only and will not control or affect the meaning or interpretation of any of the provisions hereof.

13.21 Construction and Interpretation.  The Parties have participated jointly in the negotiation and drafting of this CMSA.  In the event an ambiguity of intent or interpretation arises, this CMSA shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this CMSA.  Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.  The singular number shall include the plural and the plural the singular, and any gender shall be applicable to all genders.  The use of the words “herein”, “hereof”, “hereunder” and other similar compounds of the word “here” shall refer to this entire CMSA and not to any particular section, paragraph or provision.  Section headings are for reference only and shall not affect the meaning or interpretation of this CMSA.  The Parties intend that each representation, warranty, and covenant contained herein shall have independent significance.  If any party has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) which the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of the first representation, warranty, or covenant.

13.22  Conflict.  In the event of conflict between the terms of the CMSA, the Proposal, the Work Order Acceptance Response and the Work Order, the terms of this CMSA shall prevail absent a provision to the contrary in the Proposal or Work Order Acceptance Response that expressly provides certain terms and provisions therein shall control over certain terms and provisions in this CMSA and only to the extent in with they conflict with this CMSA. 

13.23 No Third-Party Beneficiaries.  This CMSA shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns.

13.24 Parol Evidence.  This CMSA sets forth the entire understanding and agreement of the Parties, and supersedes any and all prior written agreements or understandings between Parties, as to the subject matter of this CMSA.  This CMSA may be amended  or modified only in writing signed by both Parties.

13.25 Notices.

  1. (a) Generally.  All notices, demands, or other communication of any type (herein collectively referred to as “Notices”) given in connection with this CMSA or in any way related to the transaction contracted for herein, will be void and of no effect unless given in accordance with the provisions of this Article.
  2. (b) Notices.  All Notices hereunder will be in writing and shall be addressed as follows (or at such other address for a Party as shall be specified by like notice):

If to OneIMS:

OneIMS, Inc.

8833 Gross Point Road, Suite 202

Skokie, IL 60077

If to Client, to Client’s last known address.

Any notice hereunder shall be deemed duly given (i) if delivered in person, on the day of such delivery, (ii) if by facsimile or email, on the day on which such facsimile or email was sent, provided that receipt is personally confirmed by telephone or email, and (iii) if by recognized next day courier service, on the first business day following the date of dispatch.

(a) Delivery.  All Notices will be addressed to the last address on record for the applicable Parties.  Either Party hereto may change the address for notice specified above by giving the other Party three (3) Days advance written notice of such change of address.

IN WITNESS WHEREOF, the Parties hereto have executed this CMSA by their duly authorized representative.

WEB DESIGN AND MAINTENANCE AGREEMENT

THIS WEB DESIGN AGREEMENT (“Agreement”) is effective on the date of Client’s signature. This agreement is organized and existing under the laws of the state of Illinois between “Client” (“Client” is identified as the individual or entity who provides an electronic signature end of this agreement) and “Company” (Company is identified as OneIMS, Inc., a corporation organized and existing under the laws of the state of Illinois).

ARTICLE 1.

SCOPE OF AGREEMENT

1.1 Company’s Work. This Agreement shall control and govern all Work undertaken by Company and shall define the rights, obligations and liabilities of Company and Client. Client agrees to provide Company with necessary information, which includes, but is not limited to the following: access to its Website, technical data, know-how and proprietary information that is reasonably necessary for Company to fulfill its obligations under this Agreement and as provided under specific agreements.

1.2 Subcontracting. Company is free to delegate any Work under this Agreement to any third-party, such as a Subcontractor, without receiving prior written approval of Client.

1.3 Assigned Work. From time to time, upon mutual agreement of the Company and Client, Client may submit a Work Order to Company. Such Work Order shall be reasonably related to Web Design and shall reasonably describe the scope of Work expected by Client. The rate of pay shall be specified in the proposal. A Work Order becomes binding on Company only once an authorized representative of Company has accepted the Work Order in writing, which for purposes of this Agreement shall include email, electronic and fax communication in addition to written copy.

ARTICLE 2.

TERM OF AGREEMENT AND
TERM OF STATEMENTS OF WORK

2.1 Term of Agreement. This Agreement shall remain in full force and effect from the Effective Date hereof for a period of six (6) months and shall be automatically renewed for successive six (6) month terms, unless terminated.

2.2 Survival Beyond Termination. All provisions relating to audit, choice of law, venue, dispute resolution, indemnity, insurance, title and warranty shall survive any termination of this Agreement.

2.3 Commencement of Work. Before Company begins any web design and/or maintenance for Client, Client must either provide Company with any and all information for the content of Client’s website or authorize Company to write such information. If company is authorized to write the necessary information for Client, Client will be billed as specified in the proposal. Under no circumstances will any work on web design or maintenance be started without this information or authorization.

2.4 Title to Deliverables Upon Termination or Completion of Work. Upon payment in full to Company of all sums owed to Company hereunder, and upon Termination of Agreement or completion of Work Order, whichever occurs first, sole and exclusive world-wide right, title and interest in all documents, drawings, computer printouts and samples developed by Company shall be vested in Client; provided that Client shall not have right, title or interest in any information and knowledge known by Company prior to disclosure by Company to Client and, except to the extent limited in Article 3.1, any knowledge of Company of general application not specific to the Work provided pursuant to this Agreement.

2.5 Changes and Modifications. All and any changes to web design and maintenance must be submitted by Client to Company within 10 business days (where business days are Monday through Friday) after Client’s new website or modified has been launched. Any changes made after this period must be agreed to in writing and shall be determined in a separate proposal.

ARTICLE 3.

GENERAL PROVISIONS

3.1 “Confidential Information.” During the course of the performance of this Agreement, it may be necessary for the Parties (the “Disclosing Party“) to exchange “Confidential Information,” which includes proprietary technical data, know-how, and/or trade secrets that, but for this Agreement, the other Party (the “Receiving Party”) would have no right to receive, disclose or use. Both Company and Client shall keep confidential and shall not publish or disclose to any third party any information, photographs, data or process, drawings or specifications connected with the business of the Company and Client, as applicable, which shall come or have come into Company’s or Client’s possession. “Confidential Information” is further defined as any information that the Disclosing Party reasonable deems proprietary and has so stated; provided that “Confidential Information” shall not include any information which (a) at the time of disclosure or thereafter is generally available to or known by the public other than as a result of a disclosure by the Receiving Party or its representatives, (b) was available to the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing Party, (c) becomes available to the Receiving Parry on a non-confidential basis from a source other than the Disclosing Party or its representatives which source is not known by the Receiving Party to be bound to a confidentiality agreement with the Disclosing Party, or (d) both Company and Client agree to not be Confidential Information.

3.2 Intellectual Property Ownership. Provided that Client makes all payments it is obligated to pay Company under this Agreement, ownership of Intellectual Property is as follows:

  • (a) Under this Agreement, all Intellectual Property relating to the Website solely developed by Company, or jointly developed by Company and Client, or solely developed by Client, pursuant to a Work Order accepted by Company, is hereby assigned in all world-wide right, title, and interest to Client.
  • (b)Any other Intellectual Property not relating to the Website solely developed by Company, or jointly developed by Company and Client, or solely developed by Client, pursuant to a Work Order accepted by Company, is hereby assigned in all world-wide right, title, and interest to Client.
  • (c) Company will retain ownership of any content which does not fall under the definition of Unique Client Content. Specifically, this content includes, but is not limited to, database interfaces, market products and economy information, and Request for Proposal programs used on the server to process forms, applications or any other item of stock content used by Company to create customer websites.

ARTICLE 4.

SCOPE OF COMPANY’S WORK

4.1 Obligations of the Company. Company agrees to the following:

  • (a) Domain Registration: Company will secure a domain name for the Client at the Client’s request. Domain name will be registered through Company and will be registered in the Client’s name and become property of the Client once final payment is made. If the Client already has a domain name, Company will coordinate redirecting the address to the new host. Should the Client desire a specific domain name, which is already owned by another party, negotiations for said domain name must be undertaken by the Client.
  • (b) Text. Copy for web site must be supplied by the Client in a .doc format or .txt format via disk or email attachment. Otherwise, if not supplied on disk or via email, there will be an additional charge for typesetting and creating text.
  • (c) Photos. Photos and other misc. graphic images must be supplied by Client.
  • (d) Scanning. This agreement contemplates scanning up to 20 images for the Client. It is contemplated that this will accommodate the needs of most Clients.
  • (e) Installation. Finished site will be uploaded to Client’s hosting company. The Client understands that Company does provide hosting services and if needed can offer these services to the client. Hosting is not included in the contract price for website design unless specified in the Proposal. Hosting services require a separate Proposal with Company or the hosting service of the Client’s choice. If Company hosts Client’s Website, Client shall billed on a monthly basis at a rate specified in the proposal. The Client agrees to select a hosting service, which allows Company full access to the Client’s account via FTP. The Client will be solely responsible for any and all
    hosting service charges. If Client has no Hosting Company, Company will assist Client in securing hosting. Client is responsible for all costs incurred with hosting fees.
  • (f) Cross Browser Compatibility. Our agreement contemplates the creation of a web site viewable by both Firefox and Microsoft Internet Explorer Compatibility is defined herein as all critical elements of each page being viewable in both browsers. Client is aware that some advanced techniques on the Internet, however, may require a more recent browser version and brand or plug-in. Client is also aware that since new browsers are constantly being developed, the new browser versions may not be compatible to the site that has been developed by company. In the absence of a Maintenance Agreement, time spent to redesign a site for compatibility due to the introduction of a new browser version will be separately negotiated and in addition to the base price of our agreement.
  • (g) Time required for Completion. The standard site to be created is 15 pages or under, which requires a maximum of 90 days to complete. If Client requires more pages than the standard amount, additional time to complete the site will be needed and such deadlines will be negotiated in a separate proposal with the client.

ARTICLE 5.

DUTIES OF THE CLIENT

5.1 Obligations of the Client. Under the terms of this Agreement, the Client agrees to:

  • (a) Provide Company all necessary access to its Website for the purposes of uploading new pages and making changes for the purpose of optimization or approval to go through a third party.
  • (b) Authorize Company use of all Client logos, trademarks, Website images, etc., for use in creating informational pages and any other uses as deemed necessary by Company.
  • (c) The content of the web pages will be supplied by the Client and executed as specified by the Client. In case the Client desires additional standard web pages beyond the original number of pages discussed per the proposal, the new price for the additional pages will be negotiated.
  • (d) Where custom graphic work is requested that goes beyond the scope described, it will be billed at the hourly rate specified in the proposal. Reasonable additions or changes will be performed at no cost, but if the change or addition requires a significant amount of additional work, the above mentioned hourly rate shall apply. Company determines what is “reasonable” in such an instance.
  • (e) Price has already been negotiated with client and payment is described in a separate proposal. Client agrees to pay Company 50% of the total cost at the start of the agreement. If Client cancels the agreement at any point, Company will immediately seize all work for Client, and shall be reimbursed for time already put into work for Client in addition to the already paid 50% deposit.
  • (f) Client agrees to reimburse Company for any critical Client requested expenses necessary for the completion of the project.

5.2 Client Content. Client retains full ownership of any Unique Client Content. Upon termination, Client will be provided with any Unique Client Content created for the Website.

5.3 Registration. Client will be responsible for registration and renewal of any domain names chosen and purchased by Client through Company’s domain registration system or through a third-party website.

5.4 Third Party or Client Page Modification. Some Clients will desire to independently edit or update their web pages after completion of the site. Note however, Company is not responsible for any damage created by the Client or agent of the Client.

5.5. Web Hosting. The Client agrees to select a web hosting service that allows Company full access to the web site and a cgi-bin directory via FTP and telnet. The Client further understands that if the web hosting service’s operating system is not a UNIX system, standard CGI software may not work, and providing a substitute may incur additional charges

5.6 Copyrights and Trademarks The Client represents to the Company and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Company for inclusion in web pages are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Company and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.

5.7 Warranties and Liability Client agrees that any material submitted for publication will not contain anything leading to an abusive or unethical use of the Web Hosting Service, the Host Server or Company. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, any illegal activity, spamming, advocacy of an illegal activity, and any infringement of privacy. Client hereby agrees to indemnify and hold harmless Company from any claim resulting from the Client’s publication of material or use of those materials. It is also understood that the Company will not publish information over the Internet which may be used by another party to harm another. Company will not develop a pornography web site for the Client. Company reserves the right to determine what is and is not pornography.

5.8 Indemnification. Client agrees that it shall defend, indemnify, save and hold Company harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees associated with Company ‘s development of the client’s site. Client also agrees to defend, indemnify and hold harmless Company against Liabilities arising out of any injury to person or property caused by any products or services sold or otherwise distributed over the Client’s web site. This includes infringing on the proprietary rights of a third party, copyright infringement, and delivering any defective product or misinformation which is detrimental to another person, organization, or business.

ARTICLE 6.

PAYMENTS TO COMPANY

6.1 Pay Rates. Company shall be compensated for its Work at rates to be agreed to by the Parties (Company and Client) prior to entering this Agreement. The Rates of Pay shall be specified in a separate Proposal. Nothing herein shall be construed as providing for the sharing of profit or loss arising out of the efforts of any or both of the Parties. If the Parties cannot agree on applicable pay rates, then Company has no duty to accept the Work Order or any proposed modification.

6.2 Time of Payment. If payment has been specified as a standard flat fee payment or a flat fee plus hourly fee for content creation, 50% of the payment is required upon signing of the agreement. This 50% fee is non refundable and becomes Company’s property when it is received. This is a classic retainer, also referred to as a true or general retainer, which is paid by Client to Company in order to secure the Company’s availability during a specified period of time or for a specified project. This type of retainer is earned when paid and immediately becomes property of Company, regardless of whether Company actually performs any services for Client. After the website has been designed or modified, 35% of the payment must be paid to the company before the design is coded into html. The remaining balance of 15% must be paid prior to the to the launch of the new or modified website.

6.3 Types of Acceptable Payment. Company will accept payments made by credit card, debit card or electronic transfer only.

ARTICLE 7.

PAYMENT OF WITHHOLDINGS AND TAX

7.1 Company’s Tax Obligations:

  • (a) Performance. Company assumes full and exclusive responsibility and liability to timely file all returns and promptly pay when due all income taxes, levies, fees, assessments or other similar charges measured or based upon Company’s receipts, income or profits which are imposed by any governmental authorities having jurisdiction to levy such charges in connection with Company’s performance of Work under this Agreement and Client’s compensation therefore.
  • (b) Personnel. Payment of income tax, employment tax, social security tax, pension contributions, medical insurance or other similar charges imposed upon personnel furnished by or on behalf of Company in connection with the Work shall be the responsibility and for the account of Company.

7.2 Client’s Tax Obligations. Client assumes full and exclusive responsibility and liability to timely file all returns and promptly pay when due all sales taxes, value added taxes, ad valoreum taxes, income taxes, levies, fees, assessments or other similar charges measured or based upon Company’s receipts, income or profits which are imposed by any governmental authorities having jurisdiction to levy such charges in connection with Company’s performance of Work under this Agreement and Client’s compensation therefore.

ARTICLE 8.

INDEMNITIES AND LIABILITIES

Consequential Damages. Notwithstanding anything to the contrary contained elsewhere herein, no member or employee of either Company or Client shall be liable to the other or any employee of either Company or Client for any consequential, incidental, indirect or punitive damages of any kind or character, including, but not limited to, loss of use, loss of profit, loss of revenue whenever arising under this Agreement or as a result of, relating to or in connection with the Work under the Agreement and no claim shall be made by any member of either Company or Client against the other, regardless of whether such claim is based or claimed to be based on negligence (including sole, joint, active, passive, concurrent or gross negligence), fault, breach of warranty, breach of contract, statute, strict liability or otherwise. In the event Client is withholding payments due to Company pursuant to this Agreement, upon resolution of any dispute in favor of the Company, then Client shall pay to Company in immediately available funds, within five (5) Days from the resolution of such dispute an equal amount to the amount withheld, together with interest on such amount at an annual rate of twelve percent (12%) or the maximum non-usurious rate, whichever is less, from and including the date withheld payment was originally due.

ARTICLE 9.

INSURANCE

Company and Client shall each procure and maintain, or cause to be procured and maintained, at the sole expense of each Party and for the duration of the Agreement, insurance policies with financially responsible insurance companies, effective through primary and excess coverages, in amounts customary for the nature of this Agreement.

ARTICLE 10.

FORCE MAJEURE

Any delays in or failures of performance by Company shall not constitute default hereunder or give rise to any claims for damages, if and to the extent such delays or failures of performance are caused by occurrences of Force Majeure. The Party experiencing Force Majeure shall notify the other Party with reasonable promptness of the existence of any such Force Majeure and the probable duration thereof, and shall provide the other Party from time to time with correct information concerning same. The Party experiencing Force Majeure shall take all reasonable actions to remove the cause of Force Majeure.

ARTICLE 11.

PERFORMANCE OF THE WORK

In the performance of this Agreement, Company is an independent contractor with the authority to control and direct the performance and supervision of the Work and Work Order. It is expressly agreed that none of the personnel furnished by or on behalf of Company shall be deemed employees, servants, agents or third-party contractors of Client. Client is interested in the final result of the Work and Work Order and, subject to the other provisions of this Agreement, the manner and means for accomplishing the same are matters for Company’s determination.

ARTICLE 12.

WARRANTIES

Company warrants that all Work will be performed in accordance with established practices. Company’s warranty obligations will be limited to the assignment to Client of all warranties and guarantees related to this Agreement only and will not extend beyond the terms outlined in this Agreement. If Client requests additional performance by Company, Company will charge an additional hourly rate as described in 5.1(d) above.

Company does not warrant the functions of the site will meet Client’s expectations of site traffic or resulting business or that the operation of the web pages will be uninterrupted and / or error-free. Company is not to be held responsible for occasional downtime of email or web site due to line interruptions and/or other instances beyond Company control.

ARTICLE 13.

MISCELLANEOUS

13.1 No Partnership. This Agreement is not intended by the Parties to, and shall not, constitute, create, give effect to or otherwise imply a joint venture, pooling agreement, partnership, or formal business organization of any kind between the Parties.

13.2 Attorney’s Fees. In the event it becomes necessary for any Party hereto to file an action to enforce this Agreement or any provisions contained herein, the Party prevailing in such action will be entitled to recover, in addition to all other remedies or damages, reasonable attorney’s fees incurred in such action, and if such successful Party or Parties shall recover an award in any such action or proceeding, such costs, expenses, attorney’s fees may be included in and as part of such award.

13.3 Termination. This Agreement may be terminated by mutual consent of the Parties, or in the event of a material breach of the Agreement and at the election of the non-breaching Party if, after reasonable notice of the breach and intention to terminate, the breaching Party fails to cure such breach or otherwise satisfy the non-breaching Party within ninety (90) Days. Either party can terminate this Agreement with thirty (30) Days notice under Article 13.20 for any reason. All events of this termination under Article 13.3 are herein defined as “Termination.”

13.3 “Termination of Services” Client may terminate this agreement at any time. Company may withdraw from the Web Design and Maintenance with Client’s consent or without Client’s consent for good cause (for example, failure to comply with Client’s duties as provided for in this agreement, refusal to pay any increased hourly rates, costs, and expenses, failure to follow Company’s advice on any matter material to Client’s Web Design or Maintenance, or if circumstances arise that would render Company’s continuing representation unlawful or unethical). Upon the termination of Company’s services, whether or not it is terminated by Client or by Company, all unpaid charges are immediately due and payable to Company.

13.4 Expenses. Each Party will pay their own respective costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby.

13.5 Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Illinois.

13.6 Arbitration of all Disputes. As a material part of this Agreement, the Parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be determined by confidential, final and binding arbitration in Chicago, Illinois, in accordance with the then-existing rules for commercial arbitration of the American Arbitration Association. Disputes, claims, and controversies subject to final and binding arbitration under this Agreement include, without limitation, all those that otherwise could be tried in a court to a judge or jury in the absence of this Agreement. Each Party agrees to pay its own expenses associated with any arbitration. By agreeing to submit all disputes, claims and controversies to binding arbitration, each of the Parties expressly waives its rights to have such matters heard or tried in a court before a judge or jury or in any other tribunal. Any award shall be final, binding and conclusive upon the Parties, subject only to judicial review provided by statute, and a judgment rendered on the arbitration award may be entered in any state or federal court having jurisdiction thereof. Notwithstanding the foregoing, each Party agrees that before undertaking the aforementioned arbitration, they shall submit all disputes, claims or controversies to a mutually agreeable mediator in an attempt to a informally resolve said disputes, claims or controversies without the need for arbitration.

13.7 Consent to Jurisdiction and Forum Selection. The Parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be arbitrated exclusively in the County of Cook, State of Illinois. The aforementioned choice of venue is intended by the Parties to be mandatory and not permissive in nature, thereby precluding the possibility of arbitration between the parties with respect to or arising out of this Agreement in any jurisdiction other than that specified in this paragraph. Each Party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph. Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Article 13.20 of this Agreement. Any final award rendered against a Party in any action or proceeding shall be conclusive as to the subject of such final award and may be enforced in other jurisdictions in any manner provided by law.

13.8 Offensive Material. Company hereby reserves the right, at its sole discretion, to terminate this Agreement should it be determined that the Website involves or contains spam or offensive material. For purposes of this Agreement, offensive material includes content which is pornographic, illegal in the State of Illinois, racially, sexually, faith-based or gender insensitive, politically or otherwise inflammatory or that which the Company determines is in poor taste. Should the Company determine that the Website contains Offensive Material under this Article 13.8, Company will then send notice of termination to client pursuant to the terms outlined in Article 13.3.

13.9 Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without prior written approval of the other Party.

13.10 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any situation in any other jurisdiction.

13.11 Amendments. This Agreement may not be modified or amended, except by a written document signed by all Parties hereto. The terms of this Article may not be waived or orally amended.

13.12 Waivers. The Parties may waive any of the conditions contained herein or any part of the obligations of the other Parties hereunder, but any such waiver shall be effective only if in writing and signed by the Party waiving such conditions or obligations. No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

13.13 Counterparts. This Agreement may be signed in multiple counterparts, each of which is considered an original and all of which together will constitute a whole. This Agreement will be effective upon execution by all Parties hereto.

13.14 Headings. The descriptive headings contained in this Agreement are inserted for convenience only and will not control or affect the meaning or interpretation of any of the provisions hereof.

13.15 Construction of Terms. Where required for proper interpretation, words in the singular will include the plural; and masculine gender will include the neuter and feminine, and vice versa.

13.16 Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” shall mean including without limitation. The singular number shall include the plural and the plural the singular, and any gender shall be applicable to all genders. The use of the words “herein”, “hereof”, “hereunder” and other similar compounds of the word “here” shall refer to this entire Agreement and not to any particular section, paragraph or provision. The Parties intend that each representation, warranty, and covenant contained herein shall have independent significance. If any party has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) which the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of the first representation, warranty, or covenant.

13.17 No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns.

13.18 Survival of Representations and Warranties. All of the representations and warranties of the Parties contained in this Agreement shall survive termination.

13.19 Parol Evidence. This Agreement sets forth the entire understanding and agreement of the Parties, and supersedes any and all prior written agreements or understandings between Parties, as to the subject matter of this Agreement. This Agreement may be amended only in writing signed by both Parties.

13.20 Notices.

  • (a)Generally. All notices, demands, or other communication of any type (herein collectively referred to as “Notices”) given in connection with this Agreement or in any way related to the transaction contracted for herein, will be void and of no effect unless given in accordance with the provisions of this Article.
  • (b) Notices. All Notices hereunder will be in writing and shall be addressed as follows (or at such other address for a Party as shall be specified by like notice):
If to Company:
OneIMS, Inc.
8833 Gross Point Road, Suite 202
Skokie, IL 60077

If to Client, to client’s last known address.

Any notice hereunder shall be deemed duly given (i) if delivered in person, on the day of such delivery, (ii) if by facsimile or email, on the day on which such facsimile or email was sent, provided that receipt is personally confirmed by telephone or email, and (iii) if by recognized next day courier service, on the first business day following the date of dispatch.

(a) Delivery. All Notices will be addressed to the last address on record for the applicable Parties. Either Party hereto may change the address for notice specified above by giving the other Party three (3) Days advance written notice of such change of address.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by their duly authorized representatives.

SEARCH ENGINE OPTIMIZATION AGREEMENT

   

THIS SEARCH ENGINE OPTIMIZATION AGREEMENT (“Agreement”) for the purpose of Search Engine Optimization services (“SEO”) is effective on the date of client’s signature. This agreement is organized and existing under the laws of the state of Illinois between “Client” (Client is identified as the individual or entity who provides an electronic signature end of this agreement)  and “Company” (Company is ClickXPosure, LLC, a Limited Liability Company organized and existing under the laws of the state of Illinois).

W I T N E S S E T H:

   

WHEREAS, Client has a need for web services, specifically improving the volume and quality of traffic from Search Engines (as defined below).  Client also has a need for a broader technological marketing strategy, including domain name registration, email accounts, web engineering, technical and/or design services in order to further develop its Website (as defined below);

WHEREAS, Company has developed considerable knowledge in Search Engine Optimization (“SEO”) (as defined below);

WHEREAS, Client and Company mutually desire to pursue continued development and expansion of the Client’s Website as well as to identify potential areas of application for the Website that the Client may then use in the conduct of its business;

WHEREAS, Client is willing to provide Company with access to its Website and in an effort to optimize such allow Company access to edit its content and HTML (as defined below) coding to both increase its relevance to specific keywords and to remove barriers to Indexing Activities (as defined below) of Search Engines;

WHEREAS, Client understands and agrees that this SEO shall be an Agreement for Natural (as defined below) Search Engine results;

WHEREAS, Company agrees to provide Client with SEO and reporting services as described in this Agreement.  Company is authorized to use specific keywords and/or phrases for development, improving the ranking of, and/or positioning the contents of the Website in Search Engines listed in Article 1.1(o)  to this Agreement.

NOW, THEREFORE, for and in consideration of the promises and mutual covenants of the Parties (as defined below) herein exchanged and other good and valuable

consideration, the sufficiency and adequacy of which is acknowledged, it is hereby agreed as follows:

ARTICLE 1.

DEFINITIONS AND INTERPRETATIONS

1.1 Definitions.  Defined terms shall be represented in this Agreement in capitalized initial letterform.  The meaning of the defined terms is expressed below:

  • (a) “Advertising” means, for purposes of this Agreement, sponsored listings, images, maps, videos, definitions and suggested search refinements found within Search Engines.
  • (b) “Agreement” means this Search Engine Optimization Agreement entered on the date the Client signed and accepted the terms online between Comapny, Inc, and Client.
  • (c) “Client” is identified as the individual or entity who provides an electronic signature end of this agreement.
  • (d) “Company” means ClickXPosure, LLC, an Illinois Limited Liability Company having its principal place of business at 1900 E. Golf Road, Suite 950, Schaumburg, Illinois 60173.
  • (e) “Day” means a period of twenty-four (24) hours, from midnight to midnight.
  • (f) “Effective Date” shall mean the date the Parties sign the Agreement online.
  • (g) “Embedded Images” are those images, graphics, or other design elements, which are part of the message itself. 
  • (h) “Force Majeure” includes, but is not limited to, acts of God; war; official strikes or industrial disputes beyond the reasonable control of the Parties and which cannot be overcome by the exercise of ordinary diligence.
  • (i) “HTML” is an acronym for HyperText Markup Language, which is a set of tags and rules for use in developing HyperText Documents.  HTML is the predominant markup language for web pages.  It provides a means to describe the structure of text-based information in a document by denoting certain text as links, headings, paragraphs, etc. and to supplement that text with Interactive Forms, Embedded Images, and other objects.  HTML is written in the form of “tags” that are surrounded by angle brackets.  HTML can also describe, to some degree, the appearance and semantics of a document, and can include embedded Scripting Language code that can affect the behavior of Web Browsers and other HTML processors.  
  • (j) “Intellectual Property” means all innovations, concepts and ideas (whether patentable or not), improvements, discoveries, designs, plans, drawings, blueprints, patent applications, patents, patents rights, trademarks, trademark rights, trade names, trade name rights, service marks, product names, brands, logos and other distinctive identifications used in commerce, the goodwill associated with any of the forgoing, service mark rights, copyrights (other than copyrights in “off-the-shelf” computer programs), copyrightable works and derivatives thereof, original works of authorship, computer code of any type (whether source code or object code) in any programming or markup language underlying any type of computer programming (whether application software, middleware, firm ware or system software) including, but not limited to, applets, assemblers, compilers, design tools, user interfaces, databases and fixations thereof, domain name registrations, all applications and registrations for any of the foregoing, trade secrets, confidential and proprietary information, know-how, formulae, methods, schedules, processes and other intangible proprietary rights.
  • (k) “Interactive Forms” allow website users to utilize and navigate through the online content.  Typically Interactive Forms are one of five form entries which can be put on a web page: a text box in which the individual types a one-line response, a text area box which allows for longer responses, a radio button for multiple choice questions for which only one answer is correct, check boxes for questions to which there may be more than one possible answer and drop boxes from which the reader chooses the response from a list of preselected entries. 
  • (l) “Natural Law” sometimes called organic or algorithmic law, shall mean search results that appear because of their relevance to the search terms, as opposed to their being advertisements.  As such, Natural Law search results are not automatic and can vary periodically depending upon search terms and Search Engine recoding.
  • (m) “Party” mean’s singularly, Company or Client, and, collectively, “Parties” shall mean Company and Client.
  • (n) “Scripting Language” is a programming language that allows some control of a single or many software applications.
  • (o) “Search Engines” are the tools designed to search for information on the World Wide Web.  As it relates to this Agreement, the included Search Engines are About, All the Web, Alta Vista, AOL, Excite, Google, Hot Bot, Looksmart, Lycos, BING, Netscape and Yahoo (web pages only).
  • (p) “SEO” shall mean Search Engine Optimization, the process of improving the volume and quality of traffic to a website from search engines via natural search results.
  • (q) “Subcontractor” means any company or entity with whom Company enters into an agreement to perform any of the Work or to whom Company otherwise delegates any of the Work.
  • (r) “Term” means, as applicable, the time period designated as the term of this Agreement in Article 3.1 of this Agreement.
  • (s) “Unique Client Content” is defined for this Agreement as textual or graphical content which has been provided to Company by Client and is of Client origin, graphical content created by Company specifically for the Website and/or all application and lead data generated from Client’s Website or advertising.
  • (t) “Web Browsers” are software applications which enable a user to display and interact with text, images, videos, music, games and other information typically located on a Web Page at a Web Site on the World Wide Web or a local area network.
  • (u) “Website” shall mean the Client’s website being optimized by Company.
  • (v) “Work” means the work, jobs, services, goods, deliverables, duties and activities to be performed or provided by Company that relate to the Website.
  • (w) “Work Order” means a written order by Client to Company for request for Work.
  • ARTICLE 2.

    SCOPE OF AGREEMENT

    2.1 Company’s Work.  This Agreement shall control and govern all Work undertaken by Company and shall define the rights, obligations and liabilities of Company and Client.  Client agrees to provide Company with access to its Website, technical data, know-how and proprietary information that is reasonably necessary for Company to fulfill its obligations under this Agreement and as provided under specific agreements.

    2.2 Subcontracting.  Company is free to delegate any Work under this Agreement to any third-party, such as a Subcontractor, without receiving prior written approval of Client.

    2.3 Assigned Work.  From time to time, upon mutual agreement of the Company and Client, Client may submit a Work Order to Company.  Such Work Order shall be reasonably related to SEO and shall reasonably describe the scope of Work expected by Client.  The rate of pay shall be that designated in Article 6.1(d).  A Work Order becomes binding on Company only once an authorized representative of Company has accepted the Work Order in writing, which for purposes of this Agreement shall include email and fax communication in addition to written copy. 

    ARTICLE 3.

    TERM OF AGREEMENT AND
    TERM OF STATEMENTS OF WORK

    3.1 Term of Agreement.  This Agreement shall remain in full force and effect from the Effective Date hereof for a period of six (6) months and shall be automatically renewed for successive six (6) month terms, unless terminated under Article 15.3.

    3.2 Survival Beyond Termination.  All provisions relating to audit, choice of law, venue, dispute resolution, indemnity, insurance, title and warranty shall survive any termination of this Agreement.

    3.3] Title to Deliverables Upon Termination or Completion of Work.  Upon payment in full to Company of all sums owed to Company hereunder, and upon Termination of Agreement under Article 15.3 or completion of Work Order, whichever occurs first, sole and exclusive world-wide right, title and interest in all documents, drawings, computer printouts and samples developed by Company shall be vested in Client; provided that Client shall not have right, title or interest in any information and knowledge known by Company prior to disclosure by Company to Client and, except to the extent limited in Article 4.1, any knowledge of Company of general application not specific to the Work provided pursuant to this Agreement.

    ARTICLE 4.

    GENERAL PROVISIONS

    4.1 “Confidential Information.”  During the course of the performance of this Agreement, it may be necessary for the Parties (the “Disclosing Party“) to exchange “Confidential Information,” which includes proprietary technical data, know-how, and/or trade secrets that, but for this Agreement, the other Party (the “Receiving Party”) would have no right to receive, disclose or use.  Both Company and Client shall keep confidential and shall not publish or disclose to any third party any information, photographs, data or process, drawings or specifications connected with the business of the Company and Client, as applicable, which shall come or have come into Company’s or Client’s possession.  “Confidential Information” is further defined as any information that the Disclosing Party reasonable deems proprietary and has so stated; provided that “Confidential Information” shall not include any information which (a) at the time of disclosure or thereafter is generally available to or known by the public other than as a result of a disclosure by the Receiving Party or its representatives, (b) was available to the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing Party, (c) becomes available to the Receiving Parry on a non-confidential basis from a source other than the Disclosing Party or its representatives which source is not known by the Receiving Party to be bound to a confidentiality agreement with the Disclosing Party, or (d) both Company and Client agree to not be Confidential Information.

    4.2 Intellectual Property Ownership.   Provided that Client makes all payments it is obligated to pay Company under this Agreement, ownership of Intellectual Property is as follows:

    • (a) Under this Agreement, all Intellectual Property relating to the Website solely developed by Company, or jointly developed by Company and Client, or solely developed by Client, pursuant to a Work Order accepted by Company, is hereby assigned in all world-wide right, title, and interest to Client.
    • (b) Any other Intellectual Property not relating to the Website solely developed by Company, or jointly developed by Company and Client, or solely developed by Client, pursuant to a Work Order accepted by Company, is hereby assigned in all world-wide right, title, and interest to Client.
    • (c) Company will retain ownership of any content which does not fall under the definition of Unique Client Content.  Specifically, this content includes, but is not limited to, database interfaces, market products and economy information, and Request for Proposal programs used on the server to process forms, applications or any other item of stock content used by Company to create customer websites.

    ARTICLE 5.

    SCOPE OF COMPANY’S WORK

    5.1 Obligations of the Company.  Under the terms of this Agreement, the Company shall provide the following services:

    • (a) Research keywords and phrases to select appropriate, relevant search terms.  Number of keywords will be specified in the proposal.  Additional keyword research requires an additional Work Order bound by the terms of this Agreement.
    • (b) Edit various HTML tags and page text as necessary prior to submission to selected Search Engines.
    • (c) Create, as required, additional web pages for the purpose of “catching” keyword/phrase searches.
    • (d) Hand submit Client’s Website to the Search Engines listed in Article 1.1(o).
    • (e) Create positioning reports for Website and any associated pages showing rankings in the listed Search Engines and under which keywords.
    • (f) If established through a separate Work Order to this SEO, Company will establish Advertising of certain Client materials on websites owned and operated by Company for the purpose of delivering leads to Client and/or traffic to Client’s Website.
    • (g) If established through a separate Work Order to this SEO, Company will provide a username and password for Client to access Company dealer services.  Client, subject to Article 4.1, agrees not to share usernames and passwords with unauthorized users. 
    • (h) Upon termination of this Agreement, Company will provide Client with all Unique Client Content created for the Website.  Company’s proprietary website features are not available to Client upon cancellation.

    ARTICLE 6.

    DUTIES OF THE CLIENT

    6.1 Obligations of the Client.  Under the terms of this Agreement, the Client agrees to:

    • (a) Provide Company all necessary access to its Website for the purposes of uploading new pages and making changes for the purpose of optimization or approval to go through a third party.
    • (b) Authorize Company use of all Client logos, trademarks, Website images, etc., for use in creating informational pages and any other uses as deemed necessary by Company for Search Engine positioning and optimization.
    • (c) If Client’s site is light in textual context, Client will provide additional relevant text context in electronic format for the purpose of creating additional web pages.  As requested, Client agrees to provide content, for example 250 word synopses or descriptions about each of their keyword phrases.
    • (d) Company will charge the first monthly fee in the amount agreed to the Client’s designated credit card upon execution of this Agreement and will automatically charge all subsequent fees in the amount of agreed to this designated credit card every thirty (30) Days (or each new billing cycle) until the account is terminated.  If Client chooses not to pay by credit card, payment is due upon receipt of invoice.  Client shall make payments of the undisputed amount of all invoices under this Agreement within thirty (30) Days following receipt of each invoice from Company.  Client must promptly notify Company of any dispute and fully cooperate with Company on resolving all disputes by providing in writing and reasonable detail the basis for any dispute.  Invoices shall be presented to Client on or before the tenth (10th) Day or each calendar month following the calendar month during which the Work was performed or the expense paid.

    6.2 Client Content.  Client retains full ownership of any Unique Client Content.  Upon termination, Client will be provided with any Unique Client Content created for the Website.

    6.3 Registration.  Client will be responsible for registration and renewal of any
    domain names chosen and purchased by Client through Company’s domain registration system or through a third-party website.

    ARTICLE 7.

    NATURAL LAW SEARCH ENGINE OPTIMIZATION

    7.1 Limitations of Natural Law SEO.  Under the terms of this Agreement, the Client realizes the limitations of Natural Law SEO and accepts and acknowledges the limitations of Company over the Search Engines.  Specifically, Client acknowledges and agrees Company shall not be held liable or in any capacity responsible for any of the following limitations which accompany and are a part of Natural Law SEO:

    • (a) Company has no control over the policies of Search Engines with respect to the type of sites and/or content that they accept currently or in the future.  Client’s Website may be excluded from any directory at any time at the sole discretion of the Search Engine.  Should Client’s Website be dropped from a respective Search Engine Company will resubmit those pages that have been dropped from the index.
    • (b) Due to the competitiveness of some keywords and phrases, ongoing changes in Search Engine ranking algorithms and other competitive factors, Company does not guarantee top or any other position or consistent top ten (10) positions for any particular keyword, phrase or term.  However, if Company fails to achieve three (3) top thirty (30) positions in the Search Engines listed in Article 1.1(o), Company will start new SEO services at no cost to Client.
    • (c) Client accepts and agrees that some Search Engines may take as long as two (2) to four (4) months, and in some cases longer, after submissions to list its Website.
    • (d) Some Search Engines stop accepting submissions for an indefinite period of time.  If this situation arises, Company will add another Search Engine not previously listed at no cost to Client.
    • (e) Periodically, Search Engines drop listings for no reason and with no advanced warning.  Often, these same listings reappear without additional submissions.  Should the Website not reappear, Company will re-submit the Website based on current policies of the Search Engine in question.
    • ARTICLE 8.

      PAYMENTS TO COMPANY

      8.1 Pay Rates.  Company shall be compensated for its Work at rates to be agreed to by the Parties (Company and Client) prior to entering this Agreement.   This rates of pay shall be specified in the proposal.  Nothing herein shall be construed as providing for the sharing of profit or loss arising out of the efforts of any or both of the Parties.  If the Parties cannot agree on applicable pay rates, then Company has no duty to accept the Work Order or any proposed modification.

      8.2 Time of Payment.  First monthly payment must be remitted to Company prior to delivery of any and all services except custom Website services requiring a set-up fee.  A minimum payment as agreed to by both Parties must be remitted to Company prior to the initiation of custom Website service that requires a set-up fee.  The remaining balance will be due upon completion or execution of services.  The first monthly fee will be due upon Client’s approval of Website or within thirty (30) Days of Company’s completion of Website, whichever occurs first.  Client shall make all remaining monthly payments in advance of services to be rendered that month and payment rates may not be increased by Company without prior written notification to and approval from Client.

      6.3 Types of Acceptable Payment. Company will accept payments made by credit card, debit card or electronic transfer only.

      ARTICLE 9.

      PAYMENT OF WITHHOLDINGS AND TAX 

       

      9.1 Company’s Tax Obligations:

      • (a) Performance.  Company assumes full and exclusive responsibility and liability to timely file all returns and promptly pay when due all income taxes, levies, fees, assessments or other similar charges measured or based upon Company’s receipts, income or profits which are imposed by any governmental authorities having jurisdiction to levy such charges in connection with Company’s performance of Work under this Agreement and Client’s compensation therefore.
      • (b) Personnel.  Payment of income tax, employment tax, social security tax, pension contributions, medical insurance or other similar charges imposed upon personnel furnished by or on behalf of Company in connection with the Work shall be the responsibility and for the account of Company.
      • 9.2 Client’s Tax Obligations.  Client assumes full and exclusive responsibility and liability to timely file all returns and promptly pay when due all sales taxes, value added taxes, ad valoreum taxes, income taxes, levies, fees, assessments or other similar charges measured or based upon Company’s receipts, income or profits which are imposed by any governmental authorities having jurisdiction to levy such charges in connection with Company’s performance of Work under this Agreement and Client’s compensation therefore. 

      ARTICLE 10.

      INDEMNITIES AND LIABILITIES

      Consequential Damages.  Notwithstanding anything to the contrary contained elsewhere herein, no member or employee of either Company or Client shall be liable to the other or any employee of either Company or Client for any consequential, incidental, indirect or punitive damages of any kind or character, including, but not limited to, loss of use, loss of profit, loss of revenue whenever arising under this Agreement or as a result of, relating to or in connection with the Work under the Agreement and no claim shall be made by any member of either Company or Client against the other, regardless of whether such claim is based or claimed to be based on negligence (including sole, joint, active, passive, concurrent or gross negligence), fault, breach of warranty, breach of contract, statute, strict liability or otherwise.  In the event Client is withholding payments due to Company pursuant to this Agreement, upon resolution of any dispute in favor of the Company, then Client shall pay to Company in immediately available funds, within five (5) Days from the resolution of such dispute an equal amount to the amount withheld, together with interest on such amount at an annual rate of twelve percent (12%) or the maximum non-usurious rate, whichever is less, from and including the date withheld payment was originally due.

      ARTICLE 11.

      INSURANCE

      Company and Client shall each procure and maintain, or cause to be procured and maintained, at the sole expense of each Party and for the duration of the Agreement, insurance policies with financially responsible insurance companies, effective through primary and excess coverages, in amounts customary for the nature of this Agreement.

      ARTICLE 12.

      FORCE MAJEURE

      Any delays in or failures of performance by either Party shall not constitute default hereunder or give rise to any claims for damages, if and to the extent such delays or failures of performance are caused by occurrences of Force Majeure.  The Party experiencing Force Majeure shall notify the other Party with reasonable promptness of the existence of any such Force Majeure and the probable duration thereof, and shall provide the other Party from time to time with correct information concerning same.  The Party experiencing Force Majeure shall take all reasonable actions to remove the cause of Force Majeure.

      ARTICLE 13.

      PERFORMANCE OF THE WORK

      In the performance of this Agreement, Company is an independent contractor with the authority to control and direct the performance and supervision of the Work and Work Order.  It is expressly agreed that none of the personnel furnished by or on behalf of Company shall be deemed employees, servants, agents or third-party contractors of Client.  Client is interested in the final result of the Work and Work Order and, subject to the other provisions of this Agreement, the manner and means for accomplishing the same are matters for Company’s determination.

      ARTICLE 14.

      WARRANTIES

      Company warrants that all Work will be performed in accordance with established practices.  Company’s warranty obligations will be limited to the assignment to Client of all warranties and guarantees related to this Agreement only and will not extend beyond the terms outlined in this Agreement.

      ARTICLE 15.

      MISCELLANEOUS

      15.1 No Partnership.  This Agreement is not intended by the Parties to, and shall not, constitute, create, give effect to or otherwise imply a joint venture, pooling agreement, partnership, or formal business organization of any kind between the Parties.

      15.2 Attorney’s Fees.  In the event it becomes necessary for any Party hereto to file an action to enforce this Agreement or any provisions contained herein, the Party prevailing in such action will be entitled to recover, in addition to all other remedies or damages, reasonable attorney’s fees incurred in such action, and if such successful Party or Parties shall recover an award in any such action or proceeding, such costs, expenses, attorney’s fees may be included in and as part of such award.

      15.3 Termination.  This Agreement may be terminated by mutual consent of the Parties, or in the event of a material breach of the Agreement and at the election of the non-breaching Party if, after reasonable notice of the breach and intention to terminate, the breaching Party fails to cure such breach or otherwise satisfy the non-breaching Party within ninety (90) Days.  Either party can terminate this Agreement with thirty (30) Days notice under Article 15.20 for any reason.  All events of this termination under Article 15.3 are herein defined as “Termination.”

      15.3 “Termination of Services” Client may terminate this agreement at any time. Company may withdraw from the SEO Campaign with Client’s consent or without Client’s consent for good cause (for example, failure to comply with Client’s duties as provided for in this agreement, refusal to pay any increased hourly rates, costs, and expenses, failure to follow Company’s advice on any matter material to Client’s SEO Campaign, or if circumstances arise that would render Company’s continuing representation unlawful or unethical). Upon the termination of Company’s services, whether or not it is terminated by Client or by Company, all unpaid charges are immediately due and payable to Company.

      15.4 Expenses.  Each Party will pay their own respective costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby.

      15.5 Governing Law.  This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Illinois. 

      15.6 Arbitration of all Disputes.  As a material part of this Agreement, the Parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be determined by confidential, final and binding arbitration in Chicago, Illinois, in accordance with the then-existing rules for commercial arbitration of the American Arbitration Association.  Disputes, claims, and controversies subject to final and binding arbitration under this Agreement include, without limitation, all those that otherwise could be tried in a court to a judge or jury in the absence of this Agreement.  Each Party agrees to pay its own expenses associated with any arbitration.  By agreeing to submit all disputes, claims and controversies to binding arbitration, each of the Parties expressly waives its rights to have such matters heard or tried in a court before a judge or jury or in any other tribunal.  Any award shall be final, binding and conclusive upon the Parties, subject only to judicial review provided by statute, and a judgment rendered on the arbitration award may be entered in any state or federal court having jurisdiction thereof.  Notwithstanding the foregoing, each Party agrees that before undertaking the aforementioned arbitration, they shall submit all disputes, claims or controversies to a mutually agreeable mediator in an attempt to a informally resolve said disputes, claims or controversies without the need for arbitration.

      15.7 Consent to Jurisdiction and Forum Selection. The Parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be arbitrated exclusively in the County of Cook, State of Illinois. The aforementioned choice of venue is intended by the Parties to be mandatory and not permissive in nature, thereby precluding the possibility of arbitration between the parties with respect to or arising out of this Agreement in any jurisdiction other than that specified in this paragraph. Each Party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph.  Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Article 15.20 of this Agreement. Any final award rendered against a Party in any action or proceeding shall be conclusive as to the subject of such final award and may be enforced in other jurisdictions in any manner provided by law.

      15.8 Offensive Material.  Company hereby reserves the right, at its sole discretion, to terminate this Agreement should it be determined that the Website involves or contains spam or offensive material.  For purposes of this Agreement, offensive material includes content which is pornographic, illegal in the State of Illinois, racially, sexually, faith-based or gender insensitive, politically or otherwise inflammatory or that which the Company determines is in poor taste.  Should the Company determine that the Website contains Offensive Material under this Article 15.8, Company will then send notice of termination to client pursuant to the terms outlined in Article 15.3.

      15.9 Succession and Assignment.  This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.  No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without prior written approval of the other Party.

      15.10 Severability.  Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any situation in any other jurisdiction.

      15.11 Amendments.  This Agreement may not be modified or amended, except by a written document signed by all Parties hereto.  The terms of this Article may not be waived or orally amended.

      15.12 Waivers.  The Parties may waive any of the conditions contained herein or any part of the obligations of the other Parties hereunder, but any such waiver shall be effective only if in writing and signed by the Party waiving such conditions or obligations.  No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

      15.13 Counterparts.  This Agreement may be signed in multiple counterparts, each of which is considered an original and all of which together will constitute a whole.  This Agreement will be effective upon execution by all Parties hereto.

      15.14 Headings.  The descriptive headings contained in this Agreement are inserted for convenience only and will not control or affect the meaning or interpretation of any of the provisions hereof.

      15.15 Construction of Terms.  Where required for proper interpretation, words in the singular will include the plural; and masculine gender will include the neuter and feminine, and vice versa.

      15.16 Construction.  The Parties have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.  Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.  The word “including” shall mean including without limitation.  The singular number shall include the plural and the plural the singular, and any gender shall be applicable to all genders.  The use of the words “herein”, “hereof”, “hereunder” and other similar compounds of the word “here” shall refer to this entire Agreement and not to any particular section, paragraph or provision.  The Parties intend that each representation, warranty, and covenant contained herein shall have independent significance.  If any party has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) which the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of the first representation, warranty, or covenant.

      15.17 No Third-Party Beneficiaries.  This Agreement shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns.

      15.18 Survival of Representations and Warranties.  All of the representations and warranties of the Parties contained in this Agreement shall survive termination under Article 15.3.

      15.19 Parol Evidence.  This Agreement sets forth the entire understanding and agreement of the Parties, and supersedes any and all prior written agreements or understandings between Parties, as to the subject matter of this Agreement.  This Agreement may be amended only in writing signed by both Parties.

      15.20 Notices.

      • (a) Generally.  All notices, demands, or other communication of any type (herein collectively referred to as “Notices”) given in connection with this Agreement or in any way related to the transaction contracted for herein, will be void and of no effect unless given in accordance with the provisions of this Article.
      • (b) Notices.  All Notices hereunder will be in writing and shall be addressed as follows (or at such other address for a Party as shall be specified by like notice):
      • If to Company:
        OneIMS, Inc.
        8833 Gross Point Road, Suite 202
        Skokie, IL 60077

        If to Client, to Client’s last known address.

        Any notice hereunder shall be deemed duly given (i) if delivered in person, on the day of such delivery, (ii) if by facsimile or email, on the day on which such facsimile or email was sent, provided that receipt is personally confirmed by telephone or email, and (iii) if by recognized next day courier service, on the first business day following the date of dispatch.

        (a) Delivery.  All Notices will be addressed to the last address on record for the applicable Parties.  Either Party hereto may change the address for notice specified above by giving the other Party three (3) Days advance written notice of such change of address.

        IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by their duly authorized representatives.

BILLING

Satisfaction Guarantee

We guarantee your satisfaction. If for any reason you are not satisfied with our service, please contact your account manager and let us make it right for you. We do not provide refunds, however, we will do everything in our power to provide a pleasant experience.

Payment terms

Full payment is due on the invoice date in US currency. Late charges of 3%, or the maximum legal rate, may be applied to overdue payments. Account more than ninety days overdue will automatically be cancelled and on-going service will be restricted until payment is received in full.

Billing cycles

Each of our service’s billing cycle lasts one calendar month. Our billing cycle begins on the first (1st) of the month through the end of each month. Your first bill covers the period from the day you sign up for services through the end of the current billing cycle. If such a period is less than a full month, all charges that appear on your first bill may be pro-rated accordingly.

Payment methods

Customers using the monthly term pricing require a credit card to pay their monthly bill. OneIMS Group accepts VISA, MasterCard, Discover and American Express. Customers paying semi-annual or annual term may pay with either a credit card or check prior to the beginning of each billing cycle.

Changing credit cards

You can update your billing preferences at any time. Based on your plan, you may not be able to update your credit card information, in which case please contact our accounting team via email or phone.

Cancellations

At any time you may cancel your service for your account with a 30 day written notice. You may also upgrade or downgrade your account’s pricing plan with a 30 day written notice.

Promotions

Promotional pricing may be available for our services. Promotions are tied to particular account types and are of limited duration. You must meet the eligibility requirements to use a promotion. We reserve the right to remove promotions if you do not meet the requirements. The specific terms for each promotion shall be individually described in relevant promotional documents.

Confidential Marketing Assessment

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