Ads Management Terms and Conditions
Exact Click Digital (ECD) and Client agree as follows:
Scope of Services
ECD agrees to implement & manage online ads for Client in accordance with the specifications set forth in a signed Proposal outlining the Services to be rendered by ECD.
Price and Payment Terms
ECD will be hired on a fixed-price basis. Any material change in the Proposal will be considered out of scope and require an updated Proposal. Payment is due upon receipt of invoice. ECD reserves the right to cease work without prejudice if amounts are not paid when due.
Term and Termination
Unless terminated as provided herein, this Agreement will continue in perpetuity at the agreed monthly rate. Client may terminate this Agreement without cause at any time upon written notice, but must do so a minimum of twenty-four (24) hours before the renewal date. No payments for services rendered shall be refunded in whole or in part upon cancellation. In the event of termination without cause, Client agrees to pay ECD for all Services performed up to the date of termination. Either party may terminate this agreement for material breach, provided, however, that the terminating party has given the other party at least twenty (20) days written notice of and the opportunity to cure the breach. Termination for breach will not preclude the terminating party from exercising any other remedies for breach.
All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by ECD and will not be disclosed or used by ECD except to the extent that such disclosure or use is reasonably necessary to the performance of the Services
These obligations of confidentiality will extend for a period of “one (1) year” after the termination of this agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
Warranty and Disclaimer
ECD warrants that Services will be provided in a workmanlike manner, and in conformity with generally prevailing industry standards. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
Limitation of Remedies
Client’s sole and exclusive remedy for any claim against ECD with respect to the quality of Services will be the correction by ECD of any material defects or deficiencies therein, of which Client notifies ECD in writing within ninety (90) days after the completion of that portion of the Services. In the absence of any such notice, the Services will be deemed satisfactory to and accepted by Client.
Limitation of Liability
In no event will ECD be liable for any loss of profit or revenue by Client, or for any other consequential, incidental, indirect or economic damages incurred or suffered by Client arising as a result of or related to the Services, whether in contract, tort or otherwise, even if Client has been advised of the possibility of such loss or damages. Client further agrees that the total liability of the ECD for all claims of any kind arising as a result of or related to this Agreement, or to any act or omission of ECD, whether in contract, tort or otherwise, will not exceed an amount equal to the amount actually paid by Client to ECD for the Services during the three (3) month period preceding the date the claim arises. Client will indemnify and hold ECD harmless against any claims by third parties, including all costs, expenses and attorneys’ fees incurred by ECD therein, arising out of or in conjunction with Client’s performance under or breach of this Agreement. Client warrants and represents that it is the rightful owner or licensee of all content that it may provide to ECD for implementation on the web site. Client will indemnify and hold ECD harmless against any claims for infringement of intellectual property, including but not limited to infringement of any copyright, trademark, patent or trade secret made against ECD by any third party for use of creative assets or other intellectual property provided by Client. Similarly, Client will indemnify and hold ECD harmless against any claims by third parties, including all costs, expenses and attorneys’ fees incurred by Client therein, arising out of or in conjunction with ECD’s performance under or breach of this Agreement.
Relation of Parties
The performance by ECD of its duties and obligations under this Agreement will be that of an independent contractor, and nothing herein will create or imply an agency relationship between ECD and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
During the period of this agreement and for six (6) months thereafter, neither party will directly or indirectly solicit or offer employment to or hire any employee, former employee, subcontractor, or former subcontractor of the other without prior written consent. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party who were employed or utilized by that party on the Effective Date of this Agreement.
Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Tennessee. The arbitration will be held in Knox County Tennessee. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
If any litigation or arbitration is necessary to enforce the terms of this Agreement, neither party will be obligated to pay for the other’s attorney fees or costs.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control.
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
This Agreement together with the Online Ads Proposal and any attachments referred to herein constitute the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein