Last Update: November 13, 2015
1. IDENTIFICATION AND PARTIES
This Services Agreement (“Services Agreement”) between Magnifi Online, Inc., (“Magnifi Online”) and your company (“Client”), is entered into and effective as of the Effective Date (“Effective Date”) set forth in the Addendum to Services Agreement specific to the Client (“Addendum”). The Addendum is referred to and incorporated into this Services Agreement as if fully set forth herein, and should be read and interpreted in conjunction with this Services Agreement. Together, this Services Agreement and Client specific Addendum are collectively referred to as the “Agreement.”
In consideration for the mutual promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Magnifi Online and Client agree as follows:
2. TERM AND TERMINATION
2.1. Term. The Term of the Agreement is set forth in the Addendum.
2.2. Termination. Either party, Magnifi Online or Client, may terminate the Agreement for any reason by providing no less than thirty (30) days written notice.
2.3. Effect of Termination. Except to the extent expressly provided to the contrary in the Agreement, any rights to accrued payments, any right of action for breach of the Agreement prior to termination, and the provisions set forth in Sections 5-9 herein will survive the termination of the Agreement. Upon the termination of the Agreement, Client’s right to use the Services provided by Magnifi Online as defined herein, or any part thereof, will end immediately and Client may no longer use or access the Services, and the advertising accounts created pursuant to the Agreement, as set forth below, shall belong to Magnifi Online.
3.1. Services Provided. Throughout the Term of the Agreement, Magnifi Online will provide various search engine marketing, search engine optimization, and/or other marketing services to Client, which Client specific services are set forth and defined in the Addendum collectively as “Services.” Magnifi Online and Client reserve the right to modify the scope, nature and extent of the Services upon written agreement of both parties.
3.3. Performance of Services. Client acknowledges and agrees that Magnifi Online makes NO GUARANTEE or other representation to Client that Client will obtain any particular result, qualitatively or otherwise, as a result of the Services provided pursuant to the Agreement. While Magnifi Online will attempt to provide the Services continuously, Client acknowledges that Magnifi Online does not control the availability of search engine websites or interfaces. Client also acknowledges that: (a) Services may be inaccessible, unavailable or inoperable from time to time due to circumstances outside the control of Magnifi Online; (b) Magnifi Online is not responsible for the functionality of a search engine website or interface; and (c) while Magnifi Online will promptly submit changes to a search engine on behalf of Client, Magnifi Online cannot guarantee that a search engine will make those changes in a timely manner or at all.
4. FEES AND PAYMENTS
4.1. Fees. The fees to be paid by Client for Services pursuant to the Agreement shall be as set forth in the Addendum.
4.2. Payment of Fees. The manner and timing of payment of fees required pursuant to the Agreement shall be as set forth in the Addendum.
IF PAYMENT IS NOT RECEIVED IN FULL BY ITS DUE DATE, CLIENT’S ADVERTISING ACCOUNTS MAY BE TURNED OFF UNTIL PAYMENT IS RECEIVED IN FULL. All fees are nonrefundable. A late fee of twenty percent (20%) annually (or 1.67% monthly) or the highest rate allowed under the law, whichever is lower, will be assessed against any overdue amounts. A fee of $150.00 or the highest rate allowed under the law, whichever is lower, will be assessed for any returned checks received from Client.
4.3. Service Costs. Client will pay and will be solely responsible for charges and costs from search engine services that are generated by the Services or the effects of the Services. Client will be invoiced by each search engine service and is expected to pay such invoices on time and in full to ensure that Client’s search engine service accounts stay active. If Client is not set up on invoicing terms with the search engines, Client is expected to provide Magnifi Online a valid credit card for payment to the search engines. Client agrees that Magnifi Online is not responsible if Client’s search engine service accounts are taken offline for reasons of non-payment, late payment, or invalid credit card.
4.4. Other Costs. Client will pay and will be solely responsible for charges and costs for reasonably necessary third party services and products, including, but not limited to, accounts with search engines and advertising charges that are acquired or incurred specifically for Client’s account, provided that Magnifi Online obtains Client’s prior written authorization of such charges before incurring any amounts. Client will own all materials purchased with such funds, which materials Magnifi Online assigns, will assign or cause to be assigned to Client.
5. PROPRIETARY RIGHTS AND RESTRICTIONS
5.1. Restrictions to Use of Services. Client will not and will not allow any end user or third party under its direction and control to: (a) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or methodologies or algorithms of the Services provided by Magnifi Online by any means whatsoever, or replicate the functionality of the Services for any purpose, to the extent such restriction is allowable under applicable law; (b) license, share, or transfer the Services to any third party; or (c) disclose any performance information or analysis (including, without limitation, benchmarks) from any source relating to the Services. Client will not authorize or permit any unaffiliated third party to use the Services without the prior written consent of Magnifi Online.
5.2. Data Ownership. In order for Magnifi Online to provide the Services, Magnifi Online will collect information about Client and about visitors to Client’s website (“Client User Data”). All Client User Data is the sole property of Client, and Magnifi Online has no ownership rights in any Client User Data. Client User Data includes, without limitation, all sales and marketing information provided by Client to Magnifi Online, Client account information with search engine services, and all individually identifiable information about visitors to Client’s website, including statistical, demographic, behavioral, and psychographic information.
Solely as necessary for Magnifi Online to provide its Services to Client, Client grants to Magnifi Online a limited license to use Client User Data to perform its obligations to Client. Additionally, Magnifi Online will treat all Client User Data as confidential, proprietary information of Client, and will protect the confidentiality of Client User Data with at least the same degree of care that Magnifi Online uses to protect its own proprietary information, but with no less than reasonable care, including, without limitation, such care as may be required to transfer, store and administer such information in accordance with all applicable laws, rules, and regulations. Client’s license to Magnifi Online includes the right to collect Client User Data, either directly from Client or through other means, such as the use of redirects and 1-by-1 pixels and other such technologies. Magnifi Online will not disclose Client User Data to any third party unless such disclosure is (a) approved in writing in advance by Client; or (b) is made by Magnifi Online in response to legal process, and provided that Magnifi Online has given Client reasonable notice of, and an opportunity to contest, such legal process.
Magnifi Online will store Client User Data only for so long as necessary to perform the Services and will delete the Client User Data after it no longer has application to provision of the Services. Magnifi Online will immediately notify Client of any breach of Magnifi Online’s systems that might compromise any Client User Data and cooperate with Client in its attempts to address any such breach and comply with any legal obligations arising in connection therewith.
So that Magnifi Online may improve and promote its service offerings, Magnifi Online may aggregate Client User Data with other data, (and/or segregate portions of the Client User Data) so that it is non-personally identifiable with respect to both Client and visitors to Client’s website(s) (“Aggregated Anonymous Data”). Client agrees that Magnifi Online may create Aggregated Anonymous Data, and may use, execute, display and commercially exploit the Aggregated Anonymous Data. Magnifi Online may disclose Aggregated Anonymous Data to third parties, and may transfer or sublicense its rights with respect to Aggregated Anonymous Data.
5.3. Grant of License to Magnifi Online Proprietary Technology. All information or data, with the exception of Client User Data or Confidential Information of Client, relating to products, services, or technology of Magnifi Online, including, but not limited to, software code, algorithms, methodologies, strategies, ideas, or technology owned or developed by or for Magnifi Online, is known and referred to as “Magnifi Online Proprietary Technology.” Except as expressly licensed or assigned in the Agreement, Magnifi Online retains all right, title and interest in (including but not limited to all confidentiality, copyright, trade secret, and patent rights) to the Magnifi Online Proprietary Technology, and any and all upgrades, enhancements, modifications or derivative works of any of the foregoing.
6. REPRESENTATIONS AND INDEMNITIES
6.1. Intellectual Property Representation. Magnifi Online represents to Client that to the best knowledge of Magnifi Online, the Magnifi Online Proprietary Technology does not infringe upon the patents, copyrights or trade secret rights of any third party.
6.2. Indemnity. Client shall indemnify, defend and hold harmless Magnifi Online, together with its officers, directors, shareholders, employees, agents, servants, attorneys and representatives, and each of them, from and against any and all liability, demands, claims, costs, losses, damages, recoveries, settlements and expenses (including interest, penalties, attorney’s fees, accounting fees and expert witness fees) incurred by Magnifi Online, known or unknown, contingent to or otherwise, directly or indirectly arising from or related to the operations and business of Client and/or any information, services, product, policies, actions, advice, consultation or other work provided by Client to any third person or entity, including any contractual or other obligations arising therefrom, and further including any violation by Client, intended or unintended, of any copyrights, trademarks, service marks, patents, rights of publicity or other proprietary rights of any non-party to the Agreement.
Subject to Section 8 below, Magnifi Online will defend, or at its option settle, any claim, suit, proceeding, or demand brought against Client arising out of any allegation that the Magnifi Online Proprietary Technology and/or Services infringes upon any copyright, patent, trademark or trade secret or violates any applicable law. Magnifi Online will have no obligation with respect to any such claim unless: (a) Magnifi Online is promptly notified of such claim by Client; (b) Client allows Magnifi Online sole control of the defense of such claim; and (c) Client provides Magnifi Online with reasonable assistance, at Magnifi Online’s expense, in connection with Magnifi Online’s defense of such claim. If Magnifi Online is required to indemnify Client under the Agreement, Magnifi Online will have the option to: (a) procure for Client a license so that the Services are non-infringing; (b) replace or modify the infringing elements; or (c) if neither of the above options is reasonably available, Magnifi Online may terminate the Agreement.
7. WARRANTY DISCLAIMER
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MAGNIFI ONLINE EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO ANY AND ALL INFORMATION, PRODUCT, SERVICES, POLICIES OR ACTIONS OF MAGNIFI ONLINE ARISING OUT OF OR RELATING TO THE PROVISION OF SERVICES PURSUANT TO THE AGREEMENT.
8. LIMITATIONS OF LIABILITY
8.1. Limit of Liability. EXCEPT IN CONNECTION WITH A PARTY’S OBLIGATIONS OF INDEMNIFICATION HEREUNDER, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS PAID UNDER THE AGREEMENT BY CLIENT TO MAGNIFI ONLINE IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION ARISES.
In no event shall Magnifi Online be liable to Client for any consequential, incidental, punitive or indirect damages arising out of the Agreement, including, but not limited to, lost profits, loss of business, cost of substitute goods or services, financial damages, any form of physical, emotional or psychological injury or damage, whether arising in tort (including negligence), contract, strict liability or otherwise.
8.2. THE LIMITATIONS IN THIS SECTION 8 DO NOT APPLY TO ANY BREACH OF SECTION 5 OF THE AGREEMENT.
9. GENERAL PROVISIONS
9.1. Entire Agreement. This Services Agreement and the Addendum thereto (collectively the “Agreement”) constitute the entire agreement of the parties with respect to the subject matter thereof, and supersede any and all prior and/or contemporaneous understandings or agreements of the parties, whether oral or written.
9.2. Modification. The Agreement may be modified only by written consent of both parties, and shall be set forth in Supplemental Addendums to the Services Agreement.
9.3. Assignment. Except as expressly provided in the Agreement, neither the Agreement nor any rights, licenses or obligations under it may be assigned by either party without the prior written consent of the non-assigning party, which shall not be unreasonably withheld; but either party may assign the Agreement to an affiliate of such party or any acquirer of all or of substantially all of such party’s equity securities, assets, or business related to the subject matter of the Agreement.
9.4. No Waiver of Breach. The failure of either party to enforce its rights under the Agreement at any time for any period may not be construed as a waiver of such rights. No waiver of breach, failure of any condition or any right or remedy contained in or granted by the provisions of the Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure, right or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver onstitute a continuing waiver unless the writing so specifies.
9.5. Construction. Client agrees that it has participated fully in the drafting, review and revision of the Agreement, such that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting the Agreement. All questions concerning the validity, interpretation or performance of the terms and provisions of the Agreement, or any of the rights or obligations hereunder, shall be governed by and resolved in accordance with applicable laws in an appropriate venue with proper jurisdiction.
9.6. Severability. If any of the provisions of the Agreement are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions will be limited or eliminated to the minimum extent necessary so that the Agreement otherwise remains enforceable to the fullest extent possible.
9.7. Relationship of Parties. Client and Magnifi Online acknowledge and agree that both parties are operating independently and neither party shall be construed as an agent, partner, employee, or joint venturer of the other party nor represent themselves as such. All public announcements pertaining to the Agreement are subject to both parties’ prior written approval.
9.8. Execution of Agreement. The Agreement shall be executed by Client and Magnifi Online by way of affixing their valid and authorized signatures to the Client specific Addendum hereto. The parties warrant and represent that in executing the Agreement, they have relied on legal advice from the attorney of their choice and that the parties fully understand the terms of this Agreement. By executing the Addendum, Client acknowledges and agrees to all provisions set forth in this Services Agreement. The Addendum may be executed in counterparts, and any counterparts so executed shall constitute one agreement binding on all parties, even though not all parties have signed the original or the same counterpart.
10. QUESTIONS & CLARIFICATION
Questions and concerns about this Agreement should be addressed in writing to:
Magnifi Online, Inc.
Attn: General Counsel
2700 South Broadway, Suite 307
Englewood, CO, 80113, USA