BE FOUND ONLINE ADVERTISING SERVICES
TERMS AND CONDITIONS
1. Term; Termination. This Agreement shall remain in effect until all agreed upon SOWs hereto have expired or are terminated (the “Term”). At any time during the Term, a party shall have the right to terminate a SOW (a) thirty
(30) days after the other party’s receipt of notice that such party is in material breach of any of the terms or conditions set forth in such SOW, unless such party cures such breach within said thirty (30)day period or the non–breaching party withdraws its notice of termination, (b) immediately upon notice by a party if the other party (i) is adjudged insolvent or bankrupt, (ii) institutes or has instituted against it any proceeding seeking relief, reorganization or arrangement under any laws relating to insolvency (and, in the case of any such proceeding instituted against it, the proceeding is not dismissed within sixty (60) days after filing), (iii) makes any assignment for the benefit of creditors,
(iv) appoints a receiver, liquidator or trustee of any of its property or assets, or (v) liquidates, dissolves or winds up its business, or (c) immediately if any change occurs in any applicable laws or regulations that would, in that party’s reasonable
opinion, render the party’s performance hereunder illegal or otherwise subject to legal challenge. In the event of any termination of a SOW, Client shall promptly pay all amounts due and owing to BFO pursuant to such SOW.
2. Services. BFO will provide Client with certain services (the “Services”) as set forth in each SOW mutually agreed upon by the parties. Client agrees and acknowledges that in connection with providing the Services, BFO may utilize software, tools or technology owned by third parties or may engage independent contractors to assist in providing certain portions of the Services (each a “Technology Provider”). Each SOW shall set forth the pricing and fees for the Services to be provided pursuant to the applicable SOW and may contain additional terms and conditions that are specific to the Service.
a) Services Offered: A current list of Services offered by BFO includes, without limitation, the following: Paid Search (i.e. bidded keyword) management services, Natural Search Optimization (NSO) consulting and implementation services, local submit services, social media management services and reputation management services. BFO may offer additional Services from time to time as such additional services are developed.
b) Search Engine Accounts. In providing certain types of Services (e.g., Paid Search management services, local submit services, social media management services), BFO may work with various search engines, social media publishers and other web publishers (hereafter collectively referred to as “Search Engines”). In the event that the Services involve the use of Search Engines, then upon acceptance of this Agreement by Client, BFO will establish accounts with various Search Engines. Such accounts may, in BFO’s sole discretion, either be set up in Client’s name directly or may be set up as a sub-account of a BFO master account. Upon termination of the Agreement, BFO shall use commercially reasonable efforts to, at its sole discretion, either (i) provide Client with ownership of the accounts or sub–
accounts established with the Search Engines by BFO on behalf of Client or (ii) make the data contained within all such Search Engine accounts or sub– accounts established by BFO on behalf of Client available to Client.
3. Payment for Services. Client agrees to pay all fees for the Services to be provided hereunder. Should Client fail to timely make any payment as provided for in this Agreement, BFO shall, at its option, be entitled to immediately suspend the Services provided hereunder.
If the Services provided involve the purchase of media from any Search Engine, Client agrees to pay all such media charges incurred on its behalf in connection with providing the Services. Client acknowledges and agrees that such media fees (e.g. click fees) charged by BFO shall be based upon tracking provided by the applicable Search Engine. Client, to the fullest extent permitted by law, waives all claims relating to such media fees (including without limitation any claims for charges based on suspected invalid or fraudulent clicks) unless claimed within fourteen (14) days after the click. To the fullest extent permitted by law, and regardless of any refunds granted by a Search Engine to BFO in connection with fraudulent or invalid media fees, or otherwise, refunds to Client by BFO (if any) are at the sole discretion of BFO and shall be issued, if at all, only in the form of credit towards future fees. Client acknowledges and agrees that any credit card and related billing and payment information that Client provides to BFO may be shared by BFO with payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to BFO and servicing Client’s account. BFO shall not be liable for any use or disclosure of such information by such third parties. All fees shall be invoiced and paid in U.S. Dollars. All prices mentioned in this Agreement are exclusive of any US sales or use tax.Neither party will be responsible for the payment of any duties or taxes imposed on the income or profits of the other.
4. Client’s Responsibilities.
a) Client agrees to provide accurate, current and complete information as prompted by the Client Discovery Document which Client will complete prior to the launch of Services by BFO. Client agrees that if any information provided is materially inaccurate or incomplete, or BFO has reasonable grounds to believe that such information materially inaccurate or incomplete, BFO has the right to terminate Client’s access to the online user interface. As a condition to receipt of the Services hereunder, Client shall at all times provide BFO with such other information or any other assistance as may be reasonably requested by BFO from time to time to supplement the Registration Data and to properly and efficiently deliver the Services.
b) Client shall provide BFO with sales and marketing information applicable to the products and services available on the Client Site from time to time in order to assist BFO with providing the Services. Upon client approval for each instance of use, client grants to BFO a limited, non–exclusive, non- transferable, revocable license to use Client’s trade names, logos, trademarks, service marks, trade dress, Internet domain names, similar proprietary marks and copyrights as is reasonably necessary for BFO to provide the Services under this Agreement. Client shall, upon request by BFO, provide written confirmation to Search Engines of the existence of this Agreement and Client’s grant of the foregoing.
c) Client shall protect any passwords, access codes, user ID’s or other login information (collectively, “Passwords”) provided to Client that are used to access the online user interface. In the event that Client makes such Passwords available to any third party, Client shall (i) obligate each such third party to execute a written confidentiality agreement that binds that third party to confidentiality obligations consistent with those imposed upon Client hereunder; and (ii) be liable for all actions taken by such third party
in connection with or related to that third party’s access to the user interface.
d) Client shall be solely responsible for monitoring, operating, maintaining and managing the content of its web site (the “Client Site”). To the extent that the Services provided hereunder result in an end user being directed to the Client Site via a Search Engine, Client will ensure that navigation back to the originating Search Engine web page, whether through a particular pointer or link, the “back” button on an Internet browser, the closing of an active window, or any other return mechanism, shall not be interrupted by Client through the use of any intermediate screen or other device not specifically requested by the user, including without limitation through the use of any html popup window or any other similar device.
a) Client agrees to indemnify, defend, and hold harmless BFO and each Search Engine that displays Client’s advertisements in connection with this Agreement (and their respective officers, directors, employees, shareholders and agents) from and against any and all third party claims, liabilities, losses, damages, injuries or expenses (including reasonable attorneys’ fees) directly or indirectly arising from or relating to (i) any breach by Client of this Agreement; (ii) the violation of any applicable law or regulation by Client; (iii) the operation or content of the Client Site or any materials provided by Client to BFO; (iv) the alleged violation or infringement of any intellectual property or privacy rights of any third–party as a result of any materials provided by Client to BFO; or (v) the sale or use by Client of any information collected by Client. Client acknowledges that each Search Engine that displays Client’s advertisements in connection with this Agreement is an intended third party beneficiary of these
indemnities. Client agrees that it will not assert a defense based upon lack of privity against any Search Engine seeking to enforce this provision.
b) BFO agrees to indemnify, defend, and hold harmless Client, its officers, directors, employees, shareholders and agents from and against any and all third party claims, liabilities, losses, damages, injuries or expenses (including reasonable attorneys’ fees) directly or indirectly arising from or relating to (i) any breach by BFO of this Agreement; (ii) the violation of any applicable law or regulation by BFO; or (iii) any alleged violation or infringement of any intellectual property or privacy rights of any third–party by BFO.
6. Limitation of Liability. Neither Client, BFO nor any Search Engine shall be liable to one another for any special, consequential (even if a party has been informed of the possibility of such damages),incidental, punitive or indirect damages, losses, costs or expenses of any kind or any lost or imputed profits arising out of this Agreement or its termination; however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether such party has been advised of the possibility of such damages, losses, costs or expenses. Each party hereto waives any claims that these exclusions deprive such party of an adequate remedy. Except for liabilities resulting from either party’s willful misconduct or recklessness or either party’s indemnification obligations set forth in Section 5 above, each party’s liability hereunder shall not exceed the fees paid or payable by Client under this Agreement within the one–year period immediately proceeding the date that the alleged wrongful act first occurred. BFO shall not be liable to Client for any illegal or inappropriate act by any Search Engine or Technology Provider or any claim attributable to errors, omissions or other inaccuracies in the services provided by any Search Engine or Technology Provider.
7. Confidentiality. In connection with entering into and performing under this Agreement, each party may receive or have access to commercially valuable technical and non–technical confidential or proprietary information of the other party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including but not limited to, source code and documentation for software, trade secrets, know how, customer lists, pricing strategies, payment terms, the terms of this Agreement, marketing and business plans, information concerning such party’s vendors, and such party’s contemplated plans, strategies and prospects (“Confidential Information”). In addition to the foregoing, each party recognizes that the other party may have received and in the future may receive confidential or proprietary information of a third party (“Third Party Confidential Information“). Any Third Party Confidential Information disclosed by one party to the other party shall be deemed to be the disclosing party’s Confidential Information. Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information of the disclosing party and will similarly bind its employees. Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. If disclosure is required by law, the party required to disclose Confidential Information shall reasonably cooperate with the other party (at the other party’s request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible. Notwithstanding the foregoing, Confidential Information shall not include, and neither party will be liable for disclosure of, any information received by the receiving party under this Agreement if the information: (i) is or becomes generally available to or known to the public through no wrongful act of the receiving party; (ii) was previously known by the receiving
party through no wrongful act of receiving party; (iii) was independently developed by the receiving party without reference to the Confidential Information; or (iv) was lawfully disclosed to the receiving party by a third party under no obligation of confidentiality to the other party.
8. Data Ownership. As between Client and BFO, Client shall own all data specifically attributable to Client that is collected by BFO in connection with providing the Services hereunder. Notwithstanding the foregoing, BFO may use and disclose the data derived in connection with providing the Services (i) to the extent necessary to provide the Services, perform its obligations and enforce its rights hereunder, (ii) for BFO’s reporting purposes, consisting of compilations of aggregated statistics about the Services that may be provided to customers, potential customers and the general public, provided however, that such statistics shall not include any personally identifiable information or identify Client and (iii) if required by court order, law or governmental or regulatory agency.
9. Representations and Warranties. BFO and Client each represent and warrant to each other that: (a) such party has all necessary right, power and authority to enter into this Agreement and to perform its obligations hereunder, (b) nothing contained in this Agreement or required by such party’s performance under this Agreement will place such party in breach of any other contract or agreement to which it is bound or violate any applicable law, including, without limitation, obscenity, privacy and defamation laws and (c) the performance of this Agreement shall not infringe upon or violate the Intellectual Property or privacy rights of any third party. Each person executing this Agreement in a representative capacity represents and warrants that he or she is authorized to act on behalf of the represented entity and to bind such entity to the terms and conditions set forth herein. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, NEITHER CLIENT NOR BFO MAKE, AND EACH SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR, PURPOSE, REGARDING PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT. THE SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS–IS” AND BFO MAKES NO WARRANTY OR GUARANTEE REGARDING POSITIONING, LEVELS, QUALITY, OR TIMING OF: (I) COSTS PER CLICK; (II) CLICK THROUGH RATES; (III) AVAILABILITY AND DELIVERY OF ANY IMPRESSIONS; (IV) CLICKS; (V) CONVERSIONS OR OTHER RESULTS FOR ANY ADS; (VI) THE ADJACENCY OR PLACEMENT OF ADS BY ANY SEARCH ENGINE. CLIENT UNDERSTANDS THAT THIRD PARTIES MAY GENERATE IMPRESSIONS OR CLICKS ON CLIENT’S ADS FOR PROHIBITED OR IMPROPER PURPOSES, AND CLIENT ACCEPTS THE RISK OF ANY SUCH IMPRESSIONS AND CLICKS; AND (VII) BFO’S OR ANY SEARCH ENGINE’S OR TECHNOLOGY PROVIDER’S SYSTEM UPTIME.
10. Search Engine Agreements. By executing this Agreement, Client acknowledges that BFO has entered or may in the future enter into various agreements with different Search Engines including, but not limited to, Yahoo, Google, MSN, Facebook, etc. (collectively, “Search Engine Agreements”). Client acknowledges that the Search Engine Agreements contain certain duties, obligations and limitations imposed upon Client and that the Search Engine Agreements may contain provisions that conflict with this Agreement. Notwithstanding any provision of this Agreement to the contrary, Client hereby agrees to be bound by all terms and conditions set forth in the Search Engine Agreements. To the extent the specific terms of this Agreement conflict with the provisions of the Search Engine Agreements, the Search Engine Agreements shall control.
11. Service Specific Terms. The following provisions apply with regard to the specific Service provided pursuant to a SOW agreed upon by the parties.
a) Paid Search Marketing Services – BFO does not guarantee full coverage and/or placement with the Search Engines (defined below) and the parties acknowledge and agree that BFO and Client are subject to the Search
Engine’s determination regarding placement, targeting parameters, etc. Accordingly, BFO shall not be liable for any conduct, act or omission by any Search Engine.
b) Search Engine Optimization/Consulting Services – Client acknowledges that implementation of Search Engine Optimization/Consulting Services will require modifications to the Client web site which may include changes to site titles, meta data, copy, structure, linkage as well as other factors that influence higher index visibility and keyword ranking. BFO will provide program strategy and tactical recommendations as set forth in the SOW. Unless specifically stated to the contrary in a SOW, Client will be solely responsible for providing appropriate personnel to implement the recommendations provided as part of the Services. Notwithstanding the foregoing, Client shall be solely responsible for, operating, maintaining and managing the all aspects of the Client Site.
c) Reputation Management – Client agrees and acknowledges that BFO is not able to remove negative postings, forums, blogs or websites from the search engine index nor can BFO guarantee that such listings or information can be removed from the first page of results displayed by any Search Engine, Review Website, Blog or Forum.
d) Local Business Submit – BFO does not guarantee that all information provided by Client will be displayed by the local business listing publishers. Such publishers are not required to post and/or distribute the information that is submitted. Moreover, it is possible that previous duplicate business information may be displayed by the publishers depending on such publisher’s methods of information distribution and duplication management. BFO will attempt to remove older listings but cannot guarantee that such efforts will be effective. As part of BFO’s Reputation Management & Search Engine Optimization/Consulting Services, BFO may
engage in generating content, including but not limited to press releases and articles on behalf of Client. Upon Client’s written request, all such information may be made available to Client prior to publication. It is Client’s sole responsibility to ensure the accuracy of all such information and BFO shall not be liable for any inaccuracies contained therein.
a) Jurisdiction and Governing Law; Waiver of Jury Trial. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Illinois without regard to its conflict or choice of law provisions. Any legal action or proceeding relating to this Agreement or the provision of the Service shall be brought exclusively in the state or federal courts located in Cook County, Illinois. Client hereby submits to the exclusive jurisdiction of such courts and agrees that venue is proper in those courts for any such legal action or proceeding. The parties hereby agree to waive any right to trial by jury for any claim arising out of or relating to this Agreement or the Services provided hereunder. The prevailing party in any legal action or proceeding brought to enforce this Agreement shall be entitled to recover from the other the reasonable attorney’s fees, costs and expenses incurred in pursuing such legal action.
b) Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (a) upon delivery when delivered in person; (b) upon transmission when delivered by verified facsimile transmission; or (c) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally–recognized overnight courier service, to Client at the address set forth in the Registration Data or to BFO at 3304 N. Lincoln Ave, Chicago, Illinois 60657.
c) Successors and Assigns. This Agreement may only be assigned by a party upon obtaining the prior written consent of the other party. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
d) Modification of Terms. BFO reserves the right to modify these Terms and Conditions of this Agreement, effective upon BFO’s posting of any such revisions. Client is responsible for regularly reviewing these Terms and Conditions and Client’s continued use of the Service after any such modification shall constitute Client’s consent to such changes.
e) Relationship – Independent Contractors. Client and BFO are independent contractors and nothing in this Agreement will be deemed to create any agency, employee–employer relationship, partnership, or joint venture between the parties. Except as otherwise provided in this Agreement, neither party has or may represent that it has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party.
f) Agents. If Client is an advertising agency or otherwise acting on behalf of another person or entity (each an “Advertiser”), such Advertiser shall be identified in the applicable SOW. All references to Client in this Agreement and each applicable SOW (other than references in this Section 12(f), shall be deemed to include Advertiser. (By way of example only, “Client shall protect any passwords, access codes . . .” shall be read to mean that “Client and Advertiser shall protect any passwords, access codes. . .”). Client represents and warrants that it has been appointed as an agent of Advertiser, that Client is duly authorized to execute this Agreement and each applicable SOW on behalf of Advertiser and has full power and authority to bind Advertiser to all terms and conditions contained in this Agreement and each SOW. Client shall be jointly and severally liable for all
obligations (including, but not limited to payment and indemnification obligations) under this Agreement and each applicable SOW, and Client waives any rights that might require BFO to proceed against Advertiser prior to proceeding against Client.
g) No Waiver and Severability. No waiver by any party to a breach of this Agreement shall constitute a waiver of any provision of this Agreement or of any subsequent or other breach or default under this Agreement. In the event that any portion of this Agreement is held to be invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and the remaining provisions of this Agreement shall remain in full force and effect.
h) Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of–service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages, and upon the occurrence of any of the foregoing, the non–performing party will be excused from further performance of its obligations caused by such event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
i) Construction of Agreement. Each party and its counsel have had the opportunity to participate fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement.
j) Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.