Full Service Internet Marketing Company & Internet Marketing Tools

Internet Marketing Ninjas Master Services Agreement

Date of Last Update: February 23rd, 2015

Welcome to Internet Marketing Ninjas/Find Your Dreams (sometimes, collectively with all Find Your Dreams affiliated organizations, subsidiaries and parents, referred to as “FYD”, “us”, or “our”), a full service internet marketing company dedicated to increasing your business through the strategic use of multiple online marketing methods. When you sign up for our Services, you agree to be bound by these Terms and Conditions and any Statements of Work. Please make sure you read these Terms and Conditions – they not only protect us, but they also protect you. These Terms and Conditions govern the relationship between you and Internet Marketing Ninjas/Find Your Dreams.

1. Definitions

2. Services

Subject to these Terms and Conditions, FYD will provide the services set forth in any SOWs You accept (“Services”). Each SOW will only be effective when accepted by You and will be governed by these Terms and Conditions. Any revisions, additions or redesign You want FYD to perform that are not specified in a SOW shall be considered “additional,” will be the subject of a separate SOW and will be billed separately for the particular service.

3. Performance of Services

The manner in which the Services are to be performed and the specific hours to be worked by FYD shall be determined in the reasonable discretion of FYD.

4. Payment Terms; Late Fees

5. Confidentiality

Both Parties acknowledge and agree that all documents and information that one Party provides to the other Party related to the marketing of the Web Site and all information concerning a Party’s pricing, costs and sales (the “Confidential Information”) will constitute the valuable trade secrets of the Party disclosing it. “Confidential Information” does not include any information that (a) can be seen by the public on the Web Site when each page of the Web Site is accessed, (b) that at the time of disclosure is within the public domain, (c) that becomes a part of the public domain after disclosure through no fault, act or failure to act, error, effort or breach of this Agreement by the recipient, (d) is known to the recipient at the time of disclosure, (e) is discovered by the recipient independently of any disclosure by the disclosing Party, or (f) is obtained from a third party who has a legal right to possess and disclose such information. Each Party shall keep the Confidential Information of the other Party in confidence, excluding the existence of a business relationship between FYD and You for publicity or marketing purposes, and shall not, at any time during or after the termination of the work under any SOW, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information or use the Confidential Information of the other Party for any purpose other than to exercise its rights or fulfill its obligations under this Agreement. The limitations on disclosure of a Party’s Confidential Information shall not apply to any Confidential Information that a Party is required by order, statute or regulation, of any government authority to be disclosed to any federal or state agency, court or other body, provided, however, that any Party directed to disclose Confidential Information pursuant to a subpoena or other legal compulsion shall use its best reasonable efforts under the circumstances to notify the Party claiming confidentiality of same, and thereafter, shall disclose no more of the other Party’s Confidential Information than it is legally compelled to disclose.

6. Copyrights and Trademarks

You represent and unconditionally guarantee to us that any elements of text, graphics, photos, videos, designs, endorsements, names, trademarks, or other artwork You furnish to us for inclusion in Web pages (“Content”) are owned by You, or that You have permission from the rightful owner to use each of these elements.

7. Indemnification and Liability

Limitation of Liability

To the maximum extent permitted by law, neither Party nor its affiliates, nor their respective officers, directors, employees, agents or suppliers shall be liable to the other Party for any direct, indirect, incidental, consequential, special, reliance or punitive damages or lost or imputed profits or royalties, loss of use, business interruption, loss of revenue, loss of business or other financial loss arising out of or in connection with any of the services we furnished to You, lost data or cost of procurement of substitute goods or services. In all events, either Party’s aggregate cumulative liability for any and all claims arising in connection with any SOW shall not exceed the total of all payments You made to us during the immediately preceding ninety (90) calendar days under such SOW. Claims for damages must be made within one year of the incident to which they relate or be forever barred. The limitations and exclusions set forth in this Section shall apply to all claims or causes of action, whether for breach of any obligation arising under an SOW, these Terms and Conditions, or otherwise, whether liability is asserted in contract or tort and irrespective of whether either Party has advised or has been advised of the possibility of any such loss or damage. The provisions of this section allocate the risks under this agreement between FYD and You. Our pricing reflects this allocation of risk and limitation of liability. These limitations shall apply notwithstanding any breach of a fundamental term or failure of essential purpose of any limited remedy.

Find Your Dreams Inc. shall not be held liable for: omissions, interruptions, deletion or loss of files or data, errors, defects, delays in operation, rankings, sales, or performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to FYD records, programs, acts of Search Engines, social media companies, or act of Directories, or other places on the web which may or may not link to your site(s). Notwithstanding the above, Client’s exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate dollar amount which Client paid during the term of this Agreement (minus any third parties fees). Client agrees that FYD will not be liable for attorney’s fees or costs.

Indemnification

To the fullest extent permitted by law, each Party (the “indemnifying Party”) shall indemnify, defend, and hold harmless the other Party (the “indemnified Party”) and any third party to whom the indemnified Party is liable, and its and all of their respective affiliates, officers, directors, members, managers, agents and employees from and against all claims, demands, causes of action, damages, liabilities, losses and expenses, including, without limitation, attorney and consultant fees and expenses, arising out of the indemnifying Party’s breach of any provision of this Agreement, or the acts or omissions of the indemnifying Party or anyone for whose acts the indemnifying Party may be liable, or that are caused by or arise out of the use of any products, material, or equipment furnished by the indemnifying Party, including, without limitation, in the case of Client, the use of any Content that actually or allegedly infringes the rights of a third party under copyright, trademark, service mark, patent, trade secret or other right. Nothing herein shall be deemed to abridge the rights of each Party to seek contribution where appropriate. This indemnification obligation shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for each Party under workers’ compensation acts, disability benefit acts or other employee benefit acts.

Guaranty

You acknowledge and agree that search engine optimization inherently runs risks of algorithmic changes of search engines. FYD OFFERS NO GUARANTEE OR WARRANTY OF PRESENT OR FUTURE PLACEMENT OR IMPROVEMENT IN ANY SPECIFIC SEARCH ENGINE. FYD is not responsible for any costs associated with downtime, inventory, sales, or for changes in any search engine or directory. FYD shall also not be responsible for any other loss that may occur in the operation of the Web Site. Client assumes all risks and responsibility. While FYD has agreed to render services, it does not guarantee any specific result, and makes no warranties regarding the success of the Services.

8. Compliance with Laws; Electronic Commerce

Client is solely responsible for complying with all applicable laws, including, without limitation, tax laws and other laws governing electronic commerce. FYD shall have no responsibility or liability for the performance of Client Web sites, changes in revenue, sales levels of goods or services offered through Client Web sites, or to ensure that Client Web sites and Content comply with any applicable laws or regulations.

9. Compliance with Laws; Electronic Commerce

    1. Each SOW shall commence on the SOW Effective Date and continue for the minimum term or through the completion date listed within the SOW. Upon completion of the minimum term, Either Party may terminate any SOW upon thirty (30) days notice for its convenience upon providing prior written notice to the other Party, given that the date of termination within the notice is at least thirty (30) days from the date of notice, or if no termination date is stated, then effective upon thirty (30) days of giving of notice. If You request a Suspension of Service, FYD reserves the sole right to immediately terminate Your SOW, and our cancellation fees equal to 50% of the remaining contract amount will apply.
    2. If either Party is in material breach of this Agreement or any obligation under a SOW, the non-breaching Party may provide a written notice to the breaching Party specifying the nature of the breach. The breaching Party shall have thirty (30) days from receipt of such notice to correct the breach. If the breach is not cured within such period, the non-breaching Party may terminate the SOW by providing the breaching Party with written notice of termination. Consent to extend the thirty (30) day cure period shall not be withheld unreasonably if the breaching Party has commenced cure efforts during such period and pursues cure of the breach in good faith. Notwithstanding the foregoing, if Client is in breach of the payment terms of Section 4 of this Agreement and does not correct such breach within ten (10) days of notice of such breach, FYD may terminate the applicable SOW and/or this Agreement, or may suspend performance hereunder, pending receipt of payment in full.
    3. FYD may terminate this Agreement immediately upon the occurrence of any of the following events: (a) a receiver is appointed for Client or its material assets; (b) Client becomes insolvent, generally unable to pay its debts as they become due, or makes an assignment for the benefit of its creditors or seeks relief under any bankruptcy, insolvency or debtor’s relief law; (c) if proceedings are commenced against Client, under any bankruptcy, insolvency or debtor’s relief law, and such proceedings have not been vacated or set aside within sixty (60) days from the date of commencement thereof; or (d) if Client is liquidated, dissolved or ceases operations.

 

  1. Effect of Termination
    1. Notwithstanding any credit terms previously established with Client or any other provision of this Agreement, upon notice of termination of this Agreement, all monies owed by Client to FYD for work completed shall become immediately due and payable, and 50% of the balance of the contract amount shall become immediately due and payable.
    2. Each Party shall immediately (at the other Party’s request) return to the other, or if so requested, destroy all Confidential Information, including, without limitation, all notes and work product of the Party that concerns, includes or is derived from any of the requesting Party’s Confidential Information, and other property belonging to the requesting Party.
    3. If Services are postponed or canceled at the request of the Client, FYD shall have the right to bill Client pro rata for work completed through the date of that request, plus fees equaling 50% of the remaining contract, payable within thirty (30) days of Client’s notification to stop work.
    4. In addition to its rights to recover legal expenses, FYD shall be entitled to recover all costs and attorney fees incurred in maintaining any action or proceeding brought by FYD to collect monies or to interpret and/or enforce the terms of this Agreement due under this Agreement such action.
    5. In addition to the right to terminate this Agreement, FYD reserves all rights and remedies available to FYD at law or in equity, including the right to seek damages and injunctive relief for your breach or threatened breach of this Agreement.
    6. The following provisions of these Terms and Conditions shall survive and continue the expiration or early termination of this Agreement: Confidentiality; Indemnification and Liability; Compliance with Laws; Electronic Commerce; this Section; Refund Policy; (Governing Law; Dispute Resolution; and Non-Solicitation of Employees.
  2. Suspension of Service. If a client requests a suspension of service, FYD, in its sole discretion, with notice to You within ten (10) days of the request to suspend service, may extend the termination date of any SOW by the length of the Suspension of Service.

10. Refund Policy

You may be entitled to a refund of any fees you prepaid FYD for any Services specified under any SOW that were not yet rendered upon the effective date of termination, less a 50% cancellation fee and any non-cancelable Outside Expenses and commitments incurred on Your behalf. However, FYD reserves the right to complete all services proposed within the SOW that were due to be completed prior to the date of termination, and if FYD elects to complete all services no refund will be provided for these services.

11. Governing Law; Dispute Resolution

This Agreement will be governed by, enforced and construed in accordance with the laws of the state of New York, without regard to its choice of law provisions. In the event of any dispute arising out of, or relating to this Agreement, the Parties shall seek to settle the dispute via direct discussions. If a dispute cannot be settled through direct discussions, the Parties agree to first endeavor to settle the dispute via voluntary non-binding mediation. A mediator will be selected by voluntary agreement of both Parties, or in the event both Parties cannot agree on a mediator, a mediator will be selected in accordance with the rules of the American Arbitration Association. Each Party shall bear its own costs and expenses and an equal share of the administrative and other fees associated with the mediation. Any dispute that remains unresolved following mediation may be settled by binding arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, at the election of either Party. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) shall award to the prevailing Party, if any, as determined by the arbitrator(s), all of its costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. In rendering the award, the arbitrator(s) shall determine the rights and obligations of the Parties according to the substantive and procedural laws of the State of New York.

The forgoing shall not apply to a dispute or controversy involving either Party’s Confidential Information or intellectual property. In the event of such a dispute or controversy, either may immediately seek any legal and/or equitable remedies it deems necessary. Any mediation or arbitration shall be held in Clifton Park, New York. Any litigation shall be held in the New York state courts in Saratoga County, New York, or in the federal courts of the Northern District of New York.

12. Non-Solicitation of Employees

The Parties recognize that their respective employees, and such employees’ loyalty and services, constitute valuable assets of the other. Accordingly, neither Party shall, during the Term and for a period of one (1) year thereafter, directly or indirectly solicit, employ, offer to employ, nor engage as a consultant, any employee, any sub-contractor or independent consultant of the other Party with whom such Party had contact pursuant to this Agreement, except that nothing herein shall prevent the hiring of a person who responds to a general advertisement or solicitation. The remedy at law for any breach of the foregoing provisions may be inadequate and that, in addition to any other remedy it might have, the aggrieved Party shall be entitled to seek injunctive relief without proof of irreparable injury and without posting bond.

13. Severability

If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

14. Electronic Form

By using FYD Services, You consent to have this Agreement provided to You in electronic form. To access and retain this electronic Agreement, You must have access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, You must have all the equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. Please print a copy of this document for your records. To retain an electronic copy of this Agreement, You may save it to into any word processing program. You have a right to a paper copy of this Agreement signed by FYD. If You would like a paper copy, please email your Account Executive. If You request a paper copy of the Agreement, your account will be suspended until You return a signed copy of the paper agreement to FYD.

15. Entire Agreement; Amendment

This Agreement together with its Exhibits and other documents specifically included by reference herein constitutes the entire agreement between the Parties with regard to its subject matter. This document supersedes all prior communications, discussions, negotiations, proposed agreements and all other agreements, whether written or oral, concerning the subject matter hereof. FYD has not made, and Client has not relied upon, any representations not expressly set forth in this document in making this Agreement. This Agreement is subject to change by FYD at any time, effective upon posting on its website, and Client’s use of our Services after such posting will constitute acceptance by Client of such changes.

16. Waiver

Any waiver by either Party, whether express or implied, of any provision of this Agreement, any waiver of default, or any course of dealing hereunder, shall not affect such Party’s right to thereafter enforce such provision or to exercise any right or remedy in the event of any other default or breach whether or not similar.

17. Headings

Headings included herein are for convenience only, and shall not be used to construe this Agreement. We appreciate your business and look forward to serving You. If You ever have any questions, please contact your Account Executive or Account Manager, or use our general e-mail at [email protected].