I. Terms of Service:
- This Agreement is effective upon the date client opts-in for services, shall remain in force for the specified period (one time payment and service performed, with waiver of liability in perpetuity).
- The Client unconditionally guarantees ownership and/or rights to make changes to product and campaign data and unconditionally guarantees that all materials, including but not limited to text, images, graphics, logos, trademarks, copyrighted, or other artwork furnished to the Service Provider for the Client’s optimization services are owned by the Client, or the Client has permission from the original owner(s) and will hold harmless, protect, defend and indemnify the Service Provider and any sub-contractors from any liability, including attorney fees, court costs, any claim or suit, threatened or actual, arising from use of such elements provided by or approved by the Client.
- Further, Service Provider is NOT LIABLE FOR ANY AMOUNT EXCEEDING THE PRICE PAID BY CUSTOMER FOR SERVICES UNDER THIS AGREEMENT GIVING RISE TO ANY CLAIM. IN NO EVENT SHALL ENTOURAGE MANAGEMENT SERVICES BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS OR PROFIT, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS FEES) EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY.
II. Work to be performed:
- Initial review of all campaign data available within PPC Entourage. Client is responsible for proper selection of SKUs prior to optimization to ensure all desired campaigns are available for review.
- Optimization of all search terms and negative words potentially causing wasted ad spend.
- Keyword bid adjustments for best performing keywords and worst performing keywords across all available campaigns, which may result in added spend for best performers and decreased spend for poor performers (based on available historical data).
III. Pricing and Payment Schedule:
a) There is a one time fee of $197 for this optimization, reduced for new clients to $97 as a one time offer. No additional support, optimizations, reporting, or expansion is included in this payment or service.
b) It is understood that any and all Services requested by the Client that fall outside of the terms of this Agreement will be considered Projects, and will be quoted and billed as separate, individual Services.
c)A PPC Entourage account is required for Entourage Management Services activities.
IV. Client Marketing Costs:
a)Client understands and agrees that keyword bid adjustments may raise the bid price of certain keywords, which will result in more spend towards the daily budget of a campaign. Daily budgets will not be adjusted as a part of this service, and negative-impact keywords will be adjusted downward in bid price. Client is solely responsible for payment related to bid increases.
b) The Client also understands that such PPC programs require separate contracts and fees.
- Confidential Information. “CONFIDENTIAL INFORMATION” as used in this Agreement shall mean any and all technical and nontechnical information including patent, copyright, trade secret, proprietary information, computer files, and client information related to the past, current, future, and proposed services of Client and includes, without limitation, Client property, and Client’s information concerning customers, research, financial information, purchasing, business forecasts, sales and merchandising, and marketing plans and information.
- Nondisclosure and Nonuse Obligations. Service Provider agrees to protect the confidentiality of all Confidential Information and, except as permitted in this section, Service Provider shall neither use nor disclose the Confidential Information. Service Provider may use the Confidential Information solely to perform consulting services under this Agreement for the benefit of Client.
- Exclusion from Nondisclosure and Nonuse Obligations. Service Provider’s obligations under Section 2 (“NONDISCLOSURE AND NONUSE OBLIGATIONS”) with respect to any portion of the Confidential Information shall not apply to any such portion that Service Provider can demonstrate (a) was in the public domain at or subsequent to the time such portion was communicated to Service Provider by Client; (b) was rightfully in Service Provider’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to the Service Provider by Client; or (c) was developed by Service Provider independently of and without reference to any information communicated to Service Provider by Client. A disclosure of Confidential Information by Service Provider, either (i) in response to a valid order by a court or other governmental body, (ii) otherwise required by law, or (iii) necessary to establish the rights of either party under this Agreement, shall not be considered a breach of this Agreement or a waiver of confidentiality for other purposes, provided, however, that Service Provider shall provide prompt written notice thereof to Client to enable Client to seek a protective order or otherwise prevent such disclosure.
VI. Independent Contract Status: The Service Provider is an independent contractor and is not an employee, partner, joint venturer or servant of the Client. The Client shall determine the services to be provided by the Service Provider, but Service Provider shall determine the legal means by which it accomplishes the services in accordance with this Agreement.
a) Service Provider is not entitled to receive the benefits which employees of the Client are entitled to receive and shall not be entitled to workers compensation, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing, or Social Security on account of his services to the Client.
b) Client is not responsible for withholding and shall not withhold or deduct from the commissions FICA or taxes of any kind unless such withholding becomes legally required.
VII. Limitation of Liability
Service Provider is NOT LIABLE FOR ANY AMOUNT EXCEEDING THE PRICE PAID BY CUSTOMER FOR SERVICES UNDER THIS AGREEMENT GIVING RISE TO ANY CLAIM. IN NO EVENT SHALL MCDOUGALL INTERACTIVE BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS OR PROFIT, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS FEES) EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY. SERVICE PROVIDER DOES NOT WARRANT THE PPC RESULTS IN ANY WAY.
VIII. General Provisions
- Governing Law. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of New York. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in New York, as applicable, for any matter arising out of or relating to this Agreement.
- Severability. If any provision of this Agreement is held by a court of law to be illegal, invalid, or unenforceable, (a) that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and (b) the legality, validity, and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
- Injunctive Relief for Breach. Service Provider agrees that obligations under this Agreement are of a unique character that gives them particular value; Service Provider’s breach of any of such obligations will result in irreparable and continuing damage to Client for which there will be no adequate remedy at law; and, in the event of such breach, Client will be entitled to injunctive relief and/or a decree for specific performance and such other and further relief as may be proper, including monetary damages if appropriate.
IX. Assignment of Rights: The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without prior, expressed and written consent of the other party.
- This document and any attachments incorporated by reference constitute the entire Agreement between the parties with respect to its subject matter and supersede all other communications, whether written or oral.
- This Agreement may be modified or amended only by a writing signed by the party against whom enforcement is sought. Any provision of this Agreement found by a court of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect.
- Neither party shall be liable for delays caused by events beyond its reasonable control. Waiver of any provision of this agreement in one instance shall not preclude enforcement of such provision on future occasions.