4011 Idaho St., #3
San Diego, CA 92104
PHONE (619) 692-9439
FAX (619) 692-4443
A. AWP, a division of RosArt Multimedia Inc. (a California Corporation), is in the business of providing services related to Internet promotion and marketing.
B. Client desires to engage AWP as an independent contractor to provide certain services related to the promotion and marketing of a web site and/or print materials (the "Product") for Client as described in this Agreement (the "Project").
Advanced Web Promotion provides Internet Services. This agreement constitutes the entire agreement ("the Agreement") between Advanced Web Promotion (AWP) and client and supersedes any written or oral representations, statements, understandings or agreements. By using our services, you confirm your acceptance of, and your client's acceptance of if you resell our services, and agree to be bound by, this Agreement.
This Agreement takes effect on the date on which Client completes the AWP Online Order form, or first uses AWP services, agrees to proceed with work detailed in a proposal from AWP, or when Client pays for AWP services, whichever is the earliest. The Terms and Conditions may be modified from time to time by AWP in its sole discretion. Modifications will be effective upon posting to AWP's Web site. Client's agreement to these terms and conditions by typing "yes" and marking the agreement box on the AWP agreement web page is equivalent to a paper signature.
This Agreement shall be in force and effect for a period of one year from the day Client signs this Agreement.
3.1.1 AWP warrants that it has the right to convey the code, private personal access instructions, and other items to Client at the time and all rights thereto are transferred. AWP further warrants that to the best of its knowledge there is no "malicious code" within the Project's programming.
3.1.2 AWP agrees to meet all requirements of the selected package and to provide personal consultation as outlined in said package. In addition, AWP agrees to keep the client informed as to the status of these efforts and to perform any reasonable duties to meet the requirements of the package and the satisfaction of the client.
3.1.3 AWP warrants that it has no direct control over the search engines or any other Internet directories; therefore AWP cannot specify or guarantee the rank of a client's site or the speed at which they are ranked.
3.1.4 AWP warrants that it cannot control the demand for the client's service or product and therefore cannot guarantee a set amount of traffic or sales
3.1.5 AWP warrants that it is not responsible for the functionality, content or design of the client's site, except when this has been negotiated as part of the agreement.
3.2.1 Client warrants that it has full power and authority to enter into this Agreement and that it is binding upon Client and enforceable in accordance with its terms. Client acknowledges that in agreeing to these terms and conditions, Client has provided a legal signature.
3.2.2 Client warrants that all materials supplied to AWP by Client, and by others at Client's request are owned by Client or that Client has all necessary rights in such materials to permit AWP to use them for the Project.
3.2.3 Search Engine Optimization Exclusivity. The client agrees that during the contract period, AWP will be the only entity performing search engine optimization on the client site. This includes code optimization, site submission, content optimization and the creation of satellite sites. The clients may provide optimization of their own text content if this is mutually agreed to.
3.2.4 Client warrants that it will notify AWP of any other web-based promotional efforts designed to bring traffic to the client site. This includes but is not limited to: Pay Per Click accounts, banner advertising, and link exchanges. This is necessary for AWP to be able to evaluate the efficiency of its efforts.
3.2.5 Client warrants that the name, address and payment information provided is correct and agrees to notify AWP of any changes in Client name, address and/or payment details. Client warrants that he/she/they are at least 18 years of age and that he/she/they possess the legal right and ability to enter into this Agreement and that he/she/they will use AWP services in accordance with this Agreement. Client agrees to be responsible for the use of AWP services and to comply with his/her/their responsibilities and obligations as stated in this Agreement.
3.2.6 Client warrants its responsibility for web content. Client is entirely responsible for the content of its web pages. Client is responsible for ensuring that the web content and all aspects of the web site are compatible with the hardware and software used by AWP to provide the Promotion Services, as the same may be changed by AWP from time to time. Client will provide all text and artwork for web pages unless arranged otherwise. AWP is not responsible for the design, uploading, updating, or modification of Client's web site beyond that required for optimization or that AWP agrees to provide. Client warrants the accuracy, truthfulness and reliability of any information (including statements of opinion or advice) that is placed on its web pages. Client warrants that it is authorized to promote any information which it does so on its web pages (for example if Client is providing financial information, that Client hold any necessary authorization required under the Financial Services Acts etc.). If Client advertises or offers to sell goods or services via its web pages, Client undertakes to provide goods in conformity with any description and warranties made. Client agrees to comply with all relevant Advertising and Broadcast regulations, Consumer Credit Acts and Trades Descriptions Acts etc. If Client is advertising goods in the course of a trade or business this must clearly be so stated. Client is entirely responsible for any civil or criminal liability that is incurred as a result of any person's use of Client's web pages.
3.2.7. Client warrants that no joint venture, employment, or agency relationship exists between Client and AWP as a result of its use of AWP services. Client agrees not to hold itself out as a representative, agent or employee of AWP. Client agrees that AWP will not be liable by reason of any representation, act or omission to act by Client. AWP's performance under this Agreement is subject at all times to existing laws and legal process and nothing contained in this Agreement is in derogation of our right to comply with law enforcement requests or requirements relating to Client use of AWP services or information provided to or gathered by AWP with respect to such use.
3.2.8 Access to client site. The client agrees to give reasonable access to the site to be promoted. This includes FTP access to AWP for purposes of uploading optimized pages and continued access for maintenance during the time of the contract. If for any reason this is not possible, a solution must be agreed on to the satisfaction of AWP and the Client.
3.2.9 Access to site statistics and logs. The client agrees to make their site statistics and web server logs readily available to AWP for purposes of monitoring the effect of promotional efforts. If the site is not hosted by DaWebWorks (RosArt Multimedia, Inc.'s hosting division) then the client must provide access to their online statistics and uninterrupted access to their web server logs.
3.2.10 Guarantee Conditions. Client understands and agrees that in order for Client to qualify for the "Top Ten Listings Guarantee" (outlined in the Packages section of the AWP web site), the client site must meet all of the requirements listed here and in the Guidelines and Requirements Document on the AWP web site. If a client is unable to provide all requested access and materials at the time of the acceptance of the contract, the guarantee period will begin when all requirements are met.
AWP shall have the right to place its business name, trademark, and logo, including transfer links to its own Web site in a mutually agreed position, size and page or pages within the Project so long as such placement does not interfere with or conceal any of the content and components of the Project. Client agrees that AWP may advertise or give public notice of its design of the Client Project.
In event of a material breach by either party of any of the provisions contained in this Agreement, the other party shall have the right to terminate this Agreement at its option upon 3 days' written notice to the other party by Certified U.S. Mail, return receipt requested. Upon termination of this Agreement by Client or by AWP for cause, AWP may retain any initial payment and Client shall pay RosArt for all hours expended on the Project, up to the date of termination, at the Hourly Rate together with all other amounts due hereunder. Any initial payment that has been received shall be credited against any such amounts due. All indemnities shall continue even after any such termination.
Client acknowledges that by reason of its relationship with AWP, it may have access to certain products, information and materials relating to AWP's business, plans, customers, software technology, and marketing plans that are confidential and of substantial value to AWP, which value would be impaired if such information were disclosed to third parties. Client agrees that it will not use in any way for its own account or for the account of any third party, nor disclose to any third party, any such information revealed to it by AWP. Client further agrees that it will take every appropriate precaution to protect the confidentiality of such information. In the event of termination of this agreement, there shall be no use or disclosure by the Client of any such confidential information in its possession, and all confidential documents shall be returned to AWP or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, AWP shall be entitled to injunctive relief, which relief will not be contested by Client.
Both parties acknowledge that during the course of this Agreement, each may obtain confidential information and trade secrets regarding the other party's business.
Both parties agree to treat all such information and the terms of this Agreement as confidential and to take all reasonable precautions against disclosure of such information to unauthorized third parties during and after the term of this Agreement. Except as otherwise provided in this Agreement, upon request by the party who is the owner, all documents containing the confidential information will be returned to such party.
Neither party shall have any obligation to maintain as confidential any information that is generally known within the industry or in the public domain prior to the date of this Agreement.
Client shall indemnify, defend, and hold AWP harmless from and against any claim, suit, damages and expense, including attorneys' fees, arising from or out of any claim by any person or entity that its rights have been or are being violated or infringed upon with respect to the Initial Content or other materials provided by Client to AWP in connection with the Project.
This Agreement shall not be construed against AWP merely because of AWP involvement in its preparation.
Unless otherwise specifically permitted by this Agreement, all notices or other communications required or permitted under this Agreement shall be in writing, and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, (i) if personally delivered, upon the date of delivery to the address of the person to receive such notice, (ii) if mailed in accordance with the provisions of this paragraph, two (2) business days after the date placed in the United States mail, (iii) if mailed other than in accordance with the provisions of this paragraph or mailed from outside the United States, upon the date of delivery to the address of the person to receive such notice.
Prices quoted on-line are for guidance only. In any matter requiring our prior consent, an authorized representative of AWP must give such consent in writing. Notices to AWP may be sent by you to our email address below, by fax or conventional mail and must be confirmed by conventional mail. The address for communication to us by conventional mail is: Advanced Web Promotion, 4011 Idaho Street, Ste. 3, San Diego, CA 92104. The facsimile number is: 619.692.4443.
This Agreement, including all exhibits, and written agreements, if any, entered into concurrently herewith (i) constitute the parties' entire agreement, including all terms, conditions, definitions, warranties, representations, and covenants, with respect to the subject matter hereof, (ii) merge all prior discussions and negotiations between or among any or all of them as to the subject matter hereof, and (iii) supersede and replace all terms, conditions, definitions, warranties, representations, covenants, agreements, promises and understandings, whether oral or written, with respect to the subject matter hereof. This Agreement may not be amended, altered or modified except by a writing signed by the party to be bound. With regard to such amendments, alterations, or modifications, faxed signatures shall be effective as original signatures. Any amendment, alteration, or modification requiring the signature of more than one party may be signed in counterparts.
Each party agrees to perform any further acts and execute and deliver any further documents reasonably necessary to carry out the provisions of this Agreement.
Neither party may assign its rights under this Agreement without the written consent of the other.
Except as explicitly provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.
If any portion of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law if enforcement would not frustrate the overall intent of the parties (as such intent is manifested by all provisions of the Agreement, including such invalid, void, or otherwise unenforceable portion).
No delay or omission in the exercise of any power, remedy, or right herein provided or otherwise available to any party shall impair or affect the right of such party thereafter to exercise the same. Any extension of time or other indulgence granted to a party hereunder shall not otherwise alter or affect any power, remedy or right of any other party, or the obligations of the party to whom such extension or indulgence is granted except as specifically waived.
This Agreement and each and every provision hereof is for the exclusive benefit of the parties hereto and not for the benefit of any third party.
The headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, or extend or interpret the scope of this Agreement or of any particular provision hereof.
A reference to a particular section of this Agreement shall be deemed to include references to all subordinate sections, if any.
This Agreement may be signed in multiple counterparts with the same force and effect as if all original signatures appeared on one copy; and in the event this Agreement is signed in counterparts, each counterpart shall be deemed an original and all of the counterparts shall be deemed to be one agreement. This applies to an online signature, where Client's paper signature is deemed as equal and standing as a formal online agreement.
Should any litigation (including any proceedings in a bankruptcy court) or arbitration be commenced between the parties hereto or their representatives concerning any provision of this Agreement or the rights and duties of any person or entity hereunder, the party or parties prevailing in such litigation or arbitration shall be entitled, in addition to such other relief as may be granted, to the attorneys' fees and court or arbitration costs incurred by reason of such litigation or arbitration, including attorneys' and experts' fees incurred in preparation for or investigation of any matter relating to such litigation or arbitration.
This Agreement shall be construed in accordance with, and governed by the laws of the State of California. All rights reserved. All trademarks acknowledged.
The parties shall try to resolve all disputes that might arise out of this agreement in a spirit of cooperation without formal procedures. Any dispute that cannot be so resolved (other than the collection of money due on unpaid invoices) and other than the injunctive relief shall be subject to arbitration upon written demand of either party. Arbitration shall take place at the San Diego Mediation Center, located in San Diego County, State of California, or at a different location if the parties so agree. The arbitration will take place before an arbitration panel chosen as follows: The parties shall each choose an arbitrator, and the two arbitrators shall choose a third arbitrator and determine the third arbitrator's pay. Each party shall have one veto over the choice of the third arbitrator. The three arbitrators shall schedule an informal proceeding, hear the arguments, and decide the matter by secret majority vote. Unless the arbitrators decide otherwise, each party shall pay the costs of its own arbitrator, and shall pay half of the other costs of the arbitration proceeding. Each party shall have the right to have the proceedings transcribed. The arbitrators will not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The majority of arbitrators shall render a written opinion setting forth the basis on which they arrived at the decision regarding each issue submitted to arbitration; the dissenting arbitrator, if any, shall not issue a dissenting opinion. Regarding each issue submitted to arbitration, the decision will be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators may be entered in any court having jurisdiction. A Dispute shall be handled pursuant to the provisions of this paragraph whether it arises during the Term of this Agreement or thereafter.
Should any legal action permissible under this agreement be taken to enforce the conditions and terms of this agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable legal fees and expenses incurred at the trial and appellate levels.
In the event a Dispute is not voluntarily resolved by the parties on their own, upon the demand of either party, the matter shall be submitted to mediation in San Diego, California, under the mediation rules of the American Arbitration Association. Each party shall bear its own costs in connection with such mediation and shall bear one-half of the costs incurred with the American Arbitration Association and the mediator in connection therewith. Mediation in accordance with the provisions of this paragraph shall be a condition precedent to a demand to arbitrate in accordance with the following paragraph.
Any Dispute which is not resolved pursuant to mediation shall, upon the demand of either party, be determined and settled by arbitration in San Diego, California, under California substantive law and the Commercial Arbitration Rules of the American Arbitration Association; provided however, the arbitrator shall follow the same rules of substantive law and the rules as to the application of such law to the facts as a California Trial Court Judge hearing the same matter would be bound to follow. The parties further agree that:
(a) Attorney Fees. The arbitrator shall include attorney fees and costs in the award to the prevailing party.
(b) Discovery. The parties shall be entitled to reasonable and necessary discovery, in accordance with the provisions of California Code of Civil Procedure Section 1283.05;
(c) Findings and Conclusions. The award shall include findings of fact and conclusions of law showing the legal and factual basis for the arbitrator's decision; and
(d) Errors of Law. The award may be entered by any court of competent jurisdiction but in connection with entry by the court shall be subject to review by such court with respect to errors of law (but not with respect to errors of fact). In the event such court shall find that there was a material error of law in the arbitration award, the court in the exercise of its discretion shall correct the award and enter it or return it to the arbitrator for reconsideration in accordance with the determinations of the court.
Except for the payment of money, neither party will be liable for any failure or delay in performance under this Agreement which might be due, in whole or in part, directly or indirectly, to any contingency, delay, failure, or cause of, any nature beyond the reasonable control of such party, including, without in any way limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood or other weather, unavailability of necessary utilities or raw materials, strike, lockout, unavailability of components, activities of a combination of workmen or other labor difficulties, war, insurrection, riot, act of God or the public enemy, law, act, order, export control regulation, proclamation, decree, regulation, ordinance, or instructions of Government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement). In the event of the happening of such a cause, the party whose performance is so affected will give prompt, written notice to the other party, stating the period of time the same is expected to continue.
AWP, without cause, may terminate this Agreement by giving you 30 Days notice via e-mail or fax. In such event, AWP will be required to pay to you an amount equal to the unused and prorated portion of service excluding any setup charges. Notwithstanding the above, AWP may terminate the service under this Agreement at any time, without penalty, if you fail to comply with the terms of this Agreement.
AWP offers a 30-Day money back guarantee for its Promotion services. This guarantee excludes any setup fees or installation charges applied to AWP's services. AWP will not issue refunds or credits past the 30-day money back guarantee.
Order will automatically renew for successive periods unless the Order is earlier terminated in accordance with its terms, or either party gives written notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term.
First payment shall be due upon receipt of Order. Services will commence on the Effective Date indicated in the Order and continue for the duration of the Initial Term. Thereafter, the Order will automatically renew for successive periods unless the Order is earlier terminated in accordance with its terms, or either party gives written notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term. Any changes made to your Order (e.g. add-ons, extra traffic charges, additional server space, and additional e-mail accounts) shall be billed accordingly.
All orders are subject to acceptance by Advanced Web Promotion. An Order will be deemed accepted by AWP when confirmation of the order is sent to you. AWP may refuse to accept any Order, or delay acceptance awaiting completion of conditions AWP may choose to exercise. Such refusal of such conditions may not be unreasonable, however, and AWP agrees to provide you with reasonable notice by Email or fax of any intent to delay or decline the acceptance of any order.
Any amounts payable to AWP not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less. If AWP collects any payment due at law or through an attorney at law or under advice there from or through a collection agency, or if AWP prevails in any action to which the Customer and AWP are parties, Customer will pay all costs of collection, arbitration and litigation including, without limitation, all court costs and reasonable attorneys' fees. If any check is returned for insufficient funds, AWP may impose a processing charge of $25.
Any services in addition to those specified in the AWP package description (as outlined on the AWP web site) are considered additional services and must be negotiated separately with pricing and conditions to be determined at that time. This includes but is not limited to providing text content beyond that used in code optimization, pay-per-click services and submission to paid inclusion sites. The terms of these additional services must be to the satisfaction of both AWP and the client in order for them to be considered part of the service contract.