WHEREAS, Client has a need for web services, specifically improving the volume and quality of traffic from Search Engines. 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;
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 understands and agrees that this Agreement shall be an agreement for Natural Law Search Engine results;
WHEREAS, Company agrees to provide Client with SEO and reporting services as described in this Agreement and the applicable Work Order.
NOW, THEREFORE, and in consideration of the promises and mutual covenants of the Parties hereby agree as follows:
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:
“Advertising” – for purposes of this Agreement, sponsored listings, images, maps, videos, definitions and suggested search refinements found within Search Engines.
“Agreement” – has the meaning given above.
“Client” – has the meaning given above.
“Company” – OneIMS, Inc, an Illinois Company having its principal place of business at 110 N. Wacker Drive, Suite 2500, Chicago, IL 60606.
“Confidential Information” – any proprietary technical data, know how, trade secrets, business and marketing plans, and other information that is identified as confidential or should otherwise be understood to be confidential based on the nature of the information or circumstances of the disclosure
“Day” – a period of twenty-four (24) hours, from midnight to midnight.
“Disclosing Party” – the party that discloses or otherwise provides confidential information.
“Effective Date” – the date the Parties sign the Agreement (online or otherwise).
“Embedded Images” – images, graphics, or other design elements, which are part of the message itself.
“Force Majeure” – acts of God; war; official strikes or industrial disputes; or other events that prevent a Party’s performance; each to the extent beyond the reasonable control of the Parties and which cannot be overcome by the exercise of ordinary diligence.
“HTML” – 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.
“Intellectual Property” – 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.
“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.
“Natural Law” (sometimes called organic or algorithmic law) – 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.
“Party” – singularly, Company or Client, and, (collectively, Parties).
“Proposal” – see Work Order.
“Receiving party” – the party that recieves confidential information under this agreement.
“Scripting Language” – programming language that allows some control of a single or many software applications.
“Search Engines” – 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).
“SEO” – Search Engine Optimization, the process of improving the volume and quality of traffic to a website from search engines via natural search results.
“Subcontractor” – 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.
“Term” – the time period designated as the term of this Agreement in Article 3.1 of this Agreement.
“Unique Client Content” – textual or graphical content which has been provided to Company by Client and is of Client origin, graphical or other content created by Company specifically for the Website and all application and lead data generated from Client’s Website or advertising.
“Web Browsers” – 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.
“Website” – Client’s website being optimized by Company, as specified in the applicable Work Order.
“Work” – jobs, services, goods, deliverables, duties and activities to be performed or provided by Company that relate to the Website.
“Work Order” – a written order by Client to Company for request for Work. May also be referred to as “Proposal”
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.
2.2 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 services and shall reasonably describe the scope of Work to be performed by the company for the Client. The rate of pay shall be that designated in the Work Order. 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.
2.3 Subcontracting. Company shall have the right to use subcontractors or independent contractors in the provision of services under this Agreement and any Work Order. Company will remain responsible for the acts and omissions of its Subcontractors and independent contractors as though such acts and omissions were its own.
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 automatically renew for successive 1 month terms, until terminated under Article 14.3.
3.2 Survival Beyond Termination. Sections 4.1, 4.2, 9, 10, 13, and 14 shall survive any termination of this Agreement.
4. GENERAL PROVISIONS
4.1 “Confidential Information.” During the course of the performance of this Agreement, it may be necessary for the Disclosing Party to disclose Confidential Information to the Receiving Party. The Receiveing Party shall keep confidential and shall not publish or disclose it to any third party. 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 Party 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, (d) both Company and Client agree to not be Confidential Information, or (e) is independently developed by the Receiving Party.
4.2 Intellectual Property Ownership. 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. This includes all documents, drawings, computer printouts, code, content and samples developed or provided by Company hereunder (collectively, “Deliverables”). Company is hereby granted to a world-wide, non-exclusive perpetual license to any Deliverables jointly or solely developed by Company, or jointly developed by Company and 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 Company.
(c) Company will retain ownership of any content that it owned prior to the Work (“Prior Materials”). 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. To the extent any Deliverables incorporate Prior Materials, then Company will retain ownership of such Prior Materials but hereby grants Client a perpetual, irrevocable, unlimited license to reproduce, distribute, publish, display, create derivative works of, and otherwise use such Prior Materials as incorporated into the Deliverables.
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) Client authorizes Company use of all Client logos, trademarks, Website images, etc., for the purposes of this Agreement and any Work Order or Proposal as Company deems necessary in providing services.
(d) Fees and milestones (if any) will be set forth in the applicable Work Order. 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.
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.
6. NATURAL LAW SEARCH ENGINE OPTIMIZATION
6.1 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 limitations which accompany and are a part of Natural Law SEO.
7. PAYMENTS TO COMPANY
7.1 Pay Rates. Company shall be compensated for its Work at rates to be agreed to by the Parties prior to entering this Agreement. These rates of pay shall be specified in the Proposal unless the Parties agree on different rates in a particular Work Order. 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.
7.2 Types of Acceptable Payment. Company will accept payments made by credit card, debit card or electronic transfer only.
8. PAYMENT OF WITHHOLDINGS AND TAX
8.1 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.
8.2 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 thereof.
9. INDEMNITIES AND LIABILITIES
9.1 Indemnity. Company shall indemnify, defend, and hold harmless Client from any and all claims arising from: (i) any allegations that any Deliverables or other materials or content provided by Company hereunder infringe, misappropriate, or violate any third party Intellectual Property or other rights; or (ii) Company’s negligence, willful misconduct, or violation of law.
Cilent shall indemnify, defend, and hold harmless Company from any and all claims to arising from: (i) any alligations that Client’s materials presented to Company for the purpose of this Agreement and/or any Work Order or Proposal hereunder infringe, misappropriate, or violate any third party Intellectual Property or other rights; or (ii) Client’s negligence, willful misconduct, or violation of law.
9.2 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. 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. Client shall continue to pay undisputed amounts when due. Any undisputed amounts withheld past the due date will incur interest on such amount at an annual rate of twelve percent (12%) or the maximum allowed by law, whichever is less, from and including the date withheld payment was originally due.
Company shall procure and maintain, or cause to be procured and maintained, at its sole expense 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.
11. 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.
12. 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.
13. DISCLAIMER OF WARRANTIES
COMPANY DOES NOT WARRANT THAT SERVICES WILL MEET THE CUSTOMER’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, COMPANY PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM.
14.1 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.
14.2 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.
14.3 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 14.20 for any reason. All events of this termination under Article 14.3 are herein defined as “Termination.”
Client may terminate this Agreement at any time. Company may withdraw from the 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 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 for Work performed prior to termination are immediately due and payable to Company (and any unused amounts paid in advance will be promptly refunded to Client).
14.4 Expenses. Each Party will pay their own respective costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby.
14.5 Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Illinois.
14.6 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, Ilinois, 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 informally resolve said disputes, claims or controversies without the need for arbitration.
14.7 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 Cook County in the 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.
14.8 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 14.8, Company will then send notice of termination to Client pursuant to the terms outlined in Article 14.3.
14.9 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, which consent shall not be unreasonably withheld.
14.10 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.
14.11 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.
14.12 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.
14.13 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.
14.14 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.
14.15 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.
14.16 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.
14.17 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.
14.18 Survival of Representations and Warranties. All of the representations and warranties of the Parties contained in this Agreement shall survive termination under Article 14.3.
14.19 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.
(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:
110 N. Wacker Drive, Suite 2500
Chicago, IL 60606
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.
(c) 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.