This Agreement is made and entered into by and between the Hotel Client (the “Client”) and Top Suite Web Marketing, LLC, an Arizona limited liability company whose address is 631 N. First Avenue, Suite 203, Phoenix AZ 85003, Telephone: 602-357-3699, Fax: 1-888-648-1729, Email Address: [email protected] (the “Company”).
Engagement. Client, by its execution hereof, engages Company as an independent consultant to perform the services outlined in the proposal included with these Terms and Conditions of Service (“Terms and Conditions”). These Terms and Conditions, together with the terms and provisions contained the proposal are hereinafter referred to collectively as the “Agreement.”
Term. The Company or Participant may terminate the Agreement at any time without cause upon 48 hours written notice. Upon termination or expiration of this Agreement, Company will remove the Program website from the world-wide web and stop any and all online marketing efforts. Participant shall immediately return all confidential information, documents, product samples and Company material including all demonstration material and equipment to the Company. Upon termination, there shall be no refund or proration of any remaining balances for the then current service period.
Fees and Payments. During the Term, Client agrees to pay in full when due the monthly fees for the service selected by Client on the reverse side of this Agreement. Any setup fees shall be due upon acceptance of this Agreement by the Company. The first monthly fee shall be due upon launch of the website. All subsequent monthly fees under this Agreement shall be due on the same calendar day of each successive month (i.e., if the website goes live on May 10, subsequent monthly fees payments shall be due on June 10, July 10, etc.). Client acknowledges and agrees that any fee not paid within ten (10) days after its due date shall bear interest at the rate of 1.5% per month from such tenth (10th) day until paid. Once paid, all fees shall be nonrefundable. Company reserves the right, at any time and from time to time, to increase the monthly and other fees charged by Company for the services provided hereunder upon forty-five (45) days’ prior notice to Client.
Timing. Company will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Company. Company shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Company’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Company’s obligations under this Agreement.
Client Authorization. Client authorizes Company to (i) access without limitation Client’s website to analyze its content and structure; (ii) to alter Client’s website as necessary or desirable in Company’s sole and absolute discretion for purposes of search engine optimization, and for any other purpose agreed to by Client and Company; (iii) upload such pages and content to the Client’s website as Company deems appropriate in its sole and absolute discretion for purposes of search engine optimization; (iv) make use of all of Client’s logos, trademarks, copyrights, website images and similar items to create informational pages and for other uses deemed necessary by Company to provide the services subscribed for hereunder; and (v) communicate with third parties as Company deems necessary in its sole discretion to perform Company’s services hereunder, including but not limited to Client’s web designer.
Hosting and Email Management. Client understands that Company will host their website on our server but not their email. If client requires a solution to manage and maintain email accounts ([email protected]) then they can set that up with their IT provider or Company will recommend a provider to configure their email account(s) for them at an additional fee paid to that provider directly.
Client Acknowledgments. Client makes the following acknowledgments: (i) that Company cannot control or exert influence over the policies or operations of any search engine companies or any other third parties regarding the content of the sites that are accepted by the search engine companies or other third parties; (ii) that Company will not be responsible for any changes or alterations to Client’s website made by Client or any third parties that negatively impacts the rankings or visibility of Client’s website; (iii) that because the results of the services to be provided by Company hereunder depend upon a number of factors outside of Company’s control, Company cannot guarantee the results of its services to Client; (iv) that because the utilization of certain keywords and key phrases are very competitive, and because search engines are constantly changing search engine ranking algorithms, Company cannot guarantee that Client’s website will achieve the highest search result position in any search engine or consistent search result positions in the top rankings; (v) that certain search engine companies may affect the rankings of new and/or unproven companies (for example, “sandboxing”); (vi) that search engines will, from time to time, drop listings without specific causes; and (vii) that while Company shall use commercially reasonable diligence to promptly submit and/or effect a change in rankings of Client’s website, some search engines may take several months or longer to list and/or effect a change in rankings.
Force Majeure. Company shall not be liable for, nor considered to be in breach under this Agreement due to, delay or failure to perform under this Agreement as a consequence of any conditions that are beyond Company’s reasonable control after exercising commercially reasonable efforts.
Disclaimers of Liability. In addition to any disclaimers of liability found elsewhere in these terms and conditions, company shall not be liable to client for indirect, special, exemplary or consequential damages, and specifically disclaims any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from course of dealing, lost profits, whether foreseeable or based on breach of contract or warranty, strict liability or negligence arising under or in connection with this agreement, notwithstanding the failure of any remedy provided in this agreement. Company makes no representation or warranty of any kind or nature, whether express or implied, with respect to any products or third party content of, or software, equipment or hardware obtained from, any third parties. Company will not be responsible for results due to any alterations or overwrites made to a website by another party, as Client understands that this can adversely affect the search engine rankings of Client’s website(s), nor for the effect of Client linking to any particular websites without the prior consultation and approval of Company.
Client Representations and Warranties; Indemnity. Client represents and warrants to Company the following: (i) that Client owns the URL listed on the reverse side of this Agreement; and (ii) that Client owns or has the absolute and unrestricted right to use and to grant to Company the right to use all graphics, photos, designs, intellectual property and artwork, and any element or elements thereof, that Client furnishes to Company. Client indemnifies and holds harmless Company and Company’s owners, officers, directors and employees from and against any and all liabilities, costs and expenses (including but not limited to reasonable attorneys’ fees and costs incurred at trial, appeal or other legal proceeding) arising out of or with respect to any breach by Client of any of the foregoing representations and warranties, or the breach of any representations and warranties contained elsewhere in this Agreement, and/or the failure by Client to comply with any covenant of Client contained in this Agreement. If Client is a company, the individual signing this Agreement represents and warrants that the execution of this Agreement has been authorized by all necessary action of the Client, and that the undersigned has full authority to sign on behalf of and bind the Client hereunder.
Governing Law/Arbitration. This Agreement shall be governed by and under the laws of the State of Arizona without regard to conflict of laws principles. Any controversy or claim arising out of or under, or relating to, this Agreement, including but not limited to authority to sign this Agreement, contract formation issues, fraud or the breach of any provision hereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, in any arbitration hereunder, the arbitrator shall have no authority to award any relief outside the scope of all disclaimers stated in this Agreement. All arbitration proceedings brought hereunder shall be located exclusively in Phoenix, Arizona.
Miscellaneous. This Agreement may not be assigned by Client without the prior written consent of Company which may be withheld or denied by Company in its sole and absolute discretion. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto. The prevailing party in any suit, action or proceeding (including, but not limited to, an arbitration proceeding) arising out of or in connection with this Agreement, shall be entitled to an award of reasonable attorneys’ fees, costs and disbursements incurred by it in connection therewith. Any failure by Company to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. All previous communications about the subject matter of this agreement, either oral or written, are hereby abrogated and withdrawn, and this agreement constitutes the entire agreement between Client and Company with regard to the subject matter hereof. No terms, conditions, understandings, or agreements purporting to modify or vary the terms of this document shall be binding unless hereafter made in writing and signed by both Client and Company. There are no third party beneficiaries of or to this Agreement or any of the provisions hereunder. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument. Any signature to this Agreement that is transmitted by fax or email transmission shall be considered an original signature for all purposes. It is the intent of the parties hereto that all provisions of this Agreement shall be enforced to the fullest extent possible. Accordingly, if any arbitrator determines that the scope and/or operation of any provision of this Agreement are too broad to be enforced as written, the parties hereto intend that the arbitrator should reform such provision to the minimum extent necessary to render such provision enforceable. If, however, any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future law, and not subject to reformation, then such provision shall be fully severable, and this Agreement shall be construed and enforced as if such provision was never a part of this Agreement. The rule of construction that an ambiguity in a contract will be construed against the drafter is hereby waived by both parties hereto.
By signing this Agreement below, Client acknowledges and affirms that Client has read and fully understands the Terms and Conditions of Service on the reverse side of this Agreement, which Terms and Conditions form an integral part of this Agreement.