Marketing Service Agreement & Limitation of Liability

By Sergio Aicardi on April 25, 2005

WAIVER AND RELEASE OF LIABILITY

By signing a credit card authorization form which was provided by Profitable Web Properties LLC, you (the client) hereby enter into the following Agreement.

WHEREAS Buyer (the client) and Seller (Profitable Web Properties LLC) have previously entered into an agreement whereby Seller shall provide online advertising services to Buyer, and Buyer is to pay Seller for those services; WHEREAS Buyer understands that the internet is forever changing, that the rules and requirements of the various search engines and other online information providers are outside of Seller’s direct control, and that Seller can therefore not make any guarantees or warranties as to the specific results of Seller’s advertising efforts; NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties agree as follows.

DEFINITIONS
Agreement: This Waiver and Release of Liability.

Advertising Agreement(s): Any and all contracts, agreements, or covenants executed between the parties and in force as of the effective date of this Agreement whereby Seller is obligated to provide any form of advertising to Buyer or on behalf of Buyer’s business, including any and all subsequent amendments thereto.

Advertising Service(s): Any actions required of Seller by the parties’ Advertising Agreements, but not including any liability that such Advertising Agreements may be interpreted as imposing on Seller for ensuring any specific result.

Effective Date: The date on which this Agreement becomes effective, as identified at the beginning of this Agreement.

Keywords: The search terms used by search engine users.

Blogs / Blogging: Content that is written / typed for the purpose of being published on a website’s blog or third party blog site.

SEO: Actions or tasks that are completed to improve a website’s positioning on Google for certain keywords.

PPC: A form of advertising that involves paying a search engine company for clicks to a website. No optimization is needed to show up on the top results of a search engine using this approach, only a credit card or funds entered into an advertising account with a search engine like Google Adwords or Bing Ads.

Payment and Terms:

Marketing services provided for the client will be pre-quoted by the seller prior to engaging. The cost of the services will be outlined either via email or in person. Details of the services being rendered can be provided in a scope of work document or through email. The scope of work document outlines general best practices that will be applied to a project in most cases. Some items may or may not be completed depending on many factors. A credit card authorization form will be provided by the seller to the client which will outline the services being rendered broken down by setup fees and on going fees. When a credit card authorization form is signed, the client is agreeing that he or she understands the terms of the marketing service agreement, limitation of liability and payment terms. The client also agrees not to engage in any law suit or to attempt to make any charge back on a credit card that was used to pay for services rendered by Profitable Web Properties. Below are the main services that we (seller) offer and a summary of how they work. The services below must be opted in for by the client and are not all provided unless they’re included in the payment authorization form and or scope of work.

(a)SEO services are performed on a monthly basis and a recurring credit card payment profile will be created for the client by the seller. Setup fees are due up front and future recurring invoices will be due 30 days after the first billing cycle.  SEO service typically require a 5 to 10 business day setup, the first month’s SEO work will take place alongside of the setup tasks being completed. Services are rendered and results are measured using Google Analytics during phone calls with the client.

(b)Pay-per-click services are provided by the seller which in most cases involves setting up and managing an active pay per click campaign with Google Adwords or Bing Ads. Setup fees are required to create the new campaign structures or to optimize existing campaign structures and involve a one time fee which is due up front. On going fee’s to manage the account equal 10% up to 15% of the predetermined monthly budget set forth by the client. If the monthly budget that the client wishes to spend is below $2,000 then our admin fee to manage the account is strictly $300 per month. The seller is responsible for ensuring that the monthly budget is spent effectively. The rate-based administration fee of the predetermined monthly budget is due at the beginning of each billing cycle. If the client’s predetermined monthly budget is not met or if the seller overspends the clients budget, the client agrees that the seller is not liable by signing the credit card authorization. Seller will make the best effort to spend the budget effectively but there are no guarantees that we can meet the budget and in some cases, the budget will be overspent due to the advertising accounts daily budget and fluctuation in daily searches.

(c)Reputation Management services are provided by the seller which in actuality is a set of 10 or 20 SEO projects aimed towards occupying the first and/or second page of Google with web assets that are regulated or owned by the client. Examples of these web assets include a Facebook page, Linkedin Profile, Website, Blog, Press Release etc. The purpose of a reputation management campaign is to demote negative press or content from search engine results by promoting 10 (or 20) web assets that are regulated by the seller and or client. The web assets that the seller will optimize as part of a reputation management project will contain content which is not negative. The goal is to reduce the exposure of the negative results by pushing them back to the second or third page of Google. The setup of a reputation management project includes the costs for optimizing and creating all web assets. The setup fee will be due up front along with the first month’s payment for monthly SEO services. SEO services will be provided for each web asset and performance will be measured by checking the rankings for the 10 or 20 web assets, the goal is to improve the rankings of each web asset so that they are listed in the top 20 results for keywords related to the clients brand name or personal name.

(d) Content writing services are provided by the seller which includes providing blog posts, articles, business listing descriptions, web copy and more. All content writing projects will be quoted up front by the seller and the payment for the content will need to be collected up front. Revisions will be provided within reason if the content requires grammar, spelling or writing style improvements. If content writing services are purchased as part of an SEO service program the payment terms will be applied to the SEO service payment terms.

SELLER’S OBLIGATIONS
Services: Seller agrees to provide most of the Advertising Services as outlined in the scope of work (if requested) and credit card authorization form. Attached to the email which contains a credit Card authorization form, a cost calculator tool may be provided to the client which is intended to provide the client with a better understanding of all services being rendered. The credit card authorization form will define the monthly fees and rendered monthly services and confirms the clients understanding of the services being provided by the seller.
Reporting: Seller agrees to provide client with monthly reports detailing the efforts made on behalf of client’s business in conformity with the parties’ Advertising Agreements and in fulfillment of Seller’s obligations to provide Advertising Services.

CLIENT’S WAIVER AND RELEASE OF LIABILITY
Waiver:
 Buyer does hereby waive any claim against Seller, Seller’s employees, agents, servants, or representatives and does agree to hold them harmless for any actual, consequential, indirect, special, incidental, reliance, exemplary, or punitive damages, or loss, expense, or other injury arising from their efforts to advertise on behalf of Buyer’s business whether such damages are foreseeable or not, and whether such claims are based on the alleged breach of any express or implied warranty, breach of contract, misrepresentation, negligence, or strict liability (including damages for loss of data, goodwill, reputation, business, money, or opportunity), even if Seller has been advised of the possibility of such damages except that Seller shall retain the responsibility and liability for providing the Advertising services.

TERM AND TERMINATION
Term: This Agreement will commence on the Effective Date identified at the top of this Agreement, will continue month to month unless terminated in accordance with Subsection “Termination” below.
Termination: The client must request a cancellation of services within 15 or 30 days of the next billing cycle due date in order to avoid a final charge for the monthly service as specified in the credit card authorization form provided to the client upon engagement. Setup fees are non refundable.

MISCELLANEOUS PROVISIONS & CLAUSES
Amendment: This Agreement may be amended only by a written instrument executed by both parties.

Assignment: Neither party’s rights under this Agreement may be assigned by either party in connection with a merger, consolidation, sale, or otherwise, without the written consent of the other party. However, each party’s obligations under this Agreement are binding upon its respective heirs, purchasers, or other legal successors.

Attachments, Exhibits, and Appendices: Any attachments, exhibits, and/or appendices referred to in this Agreement are incorporated by reference as if fully set forth in this Agreement.

Conflicting Agreements: In the event that any provision of this Agreement conflicts with the term of any prior Agreement made between the parties, the terms of this Agreement shall prevail.

Contra Proferentum: Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party will not be applicable in the interpretation of this Agreement.

Disclaimer of Warranty: Except as otherwise expressly agreed to herein, Seller makes no warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, or validity of the applications, software, data, or information related to Seller’s network, systems, or Advertising Services. Seller provides its products and services “as is” and specifically disclaims all warranties of merchantability and fitness for a particular purpose. Buyer understands, acknowledges, and agrees that it will use Seller’s products and services, and all aspects thereof, at Buyer’s sole risk.

Dispute Resolution: In the event of any dispute arises related to this agreement that the parties can settle between themselves, the parties agree to mediate and arbitrate. Mediation and arbitration will be held in accordance with the rules of Salmon & Dulberg Inc..

“Mediation” is a process in which parties attempt to resolve disputes by submitting it to an impartial mediator who will facilitate the resolution of the dispute, but who is not empowered to impose a settlement on the parties. The parties will equally divide the cost of the mediation. Failure to attend after being notified of the mediation conference without written notice to the mediator will result in a default. In the event that there is no resolution through mediation, the parties agree to arbitrate.

“Arbitration” is a process in which the parties resolve a dispute by a hearing before a neutral party person or panel who decide the matter and whose decision is binding on the parties. Each party to any arbitration will pay its own fees, costs and expenses, including attorney’s fees, and will equally share the arbitrator’s fees and administrative fees of arbitration. The Arbitrator may conduct the hearing in the absence of either party after being fully notified of such hearings.

Entire Agreement, Binding Effect: This Agreement contains the entire agreement and all the terms, conditions, and obligations governing the relationship of the parties, and supersedes all prior agreements, understandings, and representations relating to the subject matter of this Agreement, whether oral or written. This Agreement is binding upon the parties and their representatives, successors, and assigns.

Force Majeure:  In the event the operations of either party are interrupted by war, fire, insurrection, labor unrest or troubles, riots, the elements, earthquakes, acts of God, or any other event beyond the reasonable control of such party, the provisions of this Agreement may be suspended for the duration of such interruption without liability to the other party. Should a substantial part of the services which either party has agreed to provide the other hereunder be interrupted pursuant to such event for a period in excess of thirty (30) days, either party will have the right to terminate this Agreement upon thirty (30) days written notice to the other.

Good Faith: The parties agree to carry out their respective responsibilities, duties, and activities under this Agreement in good faith.  The parties understand and agree that it is not a breach of the covenant of good faith to terminate this Agreement without cause. The seller may or may not be working with clients in the same industry and that is not a breach of good faith.

GOVERNING LAW: This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Florida, without giving effect to the conflicts-of-law provisions thereof, and the parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts of the State of Florida located in Broward County; provided however the parties may bring an action in any appropriate jurisdiction as necessary to obtain injunctive or equitable relief hereunder. In the event of any dispute arising in connection with this Agreement, the prevailing party will be entitled, in addition to any other rights or remedies provided by Florida law, to recover such party’s costs and expenses and reasonable attorneys fees.

No Rights in Third Parties: This Agreement does not create any rights in or inure to the benefit of any third parties.

Notices: The parties agree that routine business-related notices will be delivered via facsimile, regular mail, or e-mail. All other notifications required by this Agreement to be sent in writing will be sent by one of the following methods a) U.S. Mail; b) overnight carrier (e.g., UPS, Federal Express); or c) electronic mail. Such notices are considered received on the earlier of the date of actual receipt or three (3) days after proper mailing or transmission, as specified herein.

Ownership Clause – Seller agrees that most deliverables found in the Cost Calculator which is paid for by the client will be the property of the Buyer. Buyer will have access to all properties and content created by Seller.

Relationship of the Parties: Nothing in this Agreement will be construed as creating a relationship of employer and employee, principal and agent, partnership or joint venture between the parties. Each party will be deemed an independent contractor at all times and will have no right or authority to assume or create any obligation on behalf of the other party except as may be expressly provided in this Agreement.

Section Headings: The section and subsection headings used in this Agreement have been inserted for convenience of reference only and do not in any way modify or restrict the terms or provisions of this Agreement.

Severability: In the event that any provision of this Agreement is rendered invalid or unenforceable by any proper act of the federal, state, or local government, or declared null and void or unenforceable by any court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect and continue to bind the parties, except to the extent that the major purposes of this Agreement would be frustrated by such continuation.

Covenant not to Sue: By signing the credit card authorization form the client agrees that he or she will never sue or attempt to sue the seller for any reason whatsoever.



About The Author

Sergio Aicardi
Sergio Aicardi /

Search engine marketing is what I am passionate about and enjoy doing. I feed off of the knowledge and the fact that SEO is always and will always be changing. Remember, when it comes to SEO, always think like a search engine and you will succeed.