Terms of Agreement

By signing the contract you the client agrees to the following terms

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1. Provider shall commence work upon receipt of the required deposit, and final deliverables shall be released upon receipt of final payment. All work requested outside the scope of this proposal will be billed at a rate of $125.00 per hour or based upon mutually agreed upon terms.

   In situations where Provider has not been furnished with any specific design direction, Provider will proceed with design development according to the clients supplied content as described within the proposal.

   Any work outside the scope of the proposal will be considered billable. The cost structure is based on the approval of the primary layout design. Any design changes, thereafter, will be billable at Provider specified hourly rate.

   Provider is not responsible for the services provided by Third party vendors. Any service issues provided by additional Third party vendors will need to be brought to the attention of the vender. It cannot be assumed that Provider is responsible for the services provided by Third party vendors.

   Any project that extends beyond three (3) months from the project start date due to Customer’s failure to provide required content or approvals may, at Provider’s discretion, be subject to a monthly extended design fee equal to ten percent (10%) of the total project price.  If the delay is due to the Providers scheduling, then the fee will not be applied.

   Spelling & Grammar

   In some cases, typographical errors may occur. It is the responsibility of the client to review the site for typographical errors and to notify Provider. No refunds or credits will be provided after the design phase has started and/or once the site has been hosted. If a text error is discovered, said error will be immediately edited at no charge.

   1.      General Undertaking.

   (a) Setup Services. Provider is being hired to combine and develop an assemblage of text, graphics, applications and content supplied by each party into a World Wide Web "Web Site" under this Agreement, according to the attached proposal. Content for the website shall be delivered by each party in proper magnetic or other acceptable format. Any significant development of applications, databases or other additional components shall be described in the attached Proposal. Customer shall provide prompt feedback during development and testing.

   2.      Prices & Payment.

   (a)Technical services to create, install and test the Web Site are provided at the price as stated in the financial section of the proposal including discounts, deposits and service fees. The price for development services is payable as indicated within the financial section of this proposal or as otherwise mutually agreed by the parties. A 50% deposit is required to start the design process. Deposits or initial payments are non-refundable. Unless otherwise agreed, each party shall bear the cost, if any, of content it may contribute to development of the Web Site. Web hosting will be provided by Provider. The Provider will not be held responsible for any interruptions or defect to the website after the site has been approved by the Customer and hosted on the hosting platform. If defects arise, the Provider may fix the issue no cost to the Customer. Web Design fees shall be paid each in advance by invoice as stated within the financial section of this proposal. In addition, the Customer shall pay the cost of establishing and maintaining registration of the Internet domain name and SSL Certificates for its Web Page.  One domain per hosting account will be paid for by Provider as part of the monthly hosting fee.  Additional domains will be subject to additional domain registration charges.

   (b) Late Payments & Taxes. Services may be suspended or terminated on ten (10) days after a notice informing the Customer of a late payment.  If Customer fails to pay any amount when due. Any late payment of (1.5%) per payment occurrence shall be subject to costs of collection, including reasonable legal fees. Customer shall pay, indemnify and hold the Provider harmless from all sales, use, gross receipts, GST, value-added, personal property or other tax or levy (including interest and penalties) imposed on the services and deliverables provided hereunder, other than taxes based on the net income or profits of the Provider.

   (c) Extended Design Fee. Unless otherwise agreed upon, Any project that extends beyond three (3) months from the project start date due to Customer’s failure to provide required content or approvals may, at Provider’s discretion, be subject to a monthly extended design fee equal to ten percent (10%) of the total project price. This fee will not be charge if the delay is due to the Provider’s scheduling.

   3.      Term of Agreement.

   (a)This Agreement shall commence on the date written within the proposal. Unless terminated earlier under Section (b), this Agreement shall continue in full force and effect until either party terminates by giving the other party at least Thirty (30) days' advance written notice or at least thirty (30) days' advance written notice after the contract expires. The customer will be required to pay a contract cancellation fee equal to one month of services if the customer cancels the contract within the terms.

   (b) Either party may suspend or terminate this Agreement if the other party materially breaches any provision and fails within ten (10) days of written notice to correct such default or commence corrective action reasonably acceptable to the aggrieved party and proceed with due diligence to correction. For a period of thirty (30) days following termination, the Provider shall upon request include in any Internet web page that it continues to operate at the same domain a public notice of Customer's forwarding URL address and, for a reasonable fee, provide a hyperlink connecting visitors to Customer's new Web Site

   4.      Proprietary Rights.

   The Provider owns and, during the Term, hereby licenses for use as an integrated part of the Web Site on a non-exclusive basis all preexisting data, databases, graphics, templates, software programs (including JAVA applets), and other material contributed by it to the development or operation of the Web Site. Subject to the foregoing sentence and receipt of final payment in full, Provider agrees that to the extent of new authorship, the Web Site (including its constituent parts) constitutes "work for hire" under Federal Copyright Law (17 U.S.C. Section 101) owned exclusively by Customer and, alternatively, irrevocably assigns to Customer all ownership rights and irrevocably waives all other rights (including moral rights) it might have in the Web Site. Upon termination, the Provider shall delete the Web Site from the Hosting Platform, disconnect itself as a user from all marketing or Third party relationships, and, subject to final payment, deliver it to Customer. The Customer shall own the portion of the Uniform Resource Locator (URL) unique to the Web Site and, for use on the Internet, of all trademarks or service marks associated with it.  Provider retains the right to reuse non-client-specific structural elements, layouts, and design concepts for future use but shall not use or replicate any of the Customer's written content or contact information.  Upon termination, it is the responsibility of the Customer to reestablish all licenses and fees under accounts in the Customer’s name.  The Provider cannot be held responsible for renewing all licenses upon the termination of this Agreement.

   5.      Confidentiality.

   (a) Email Privacy. It is the Provider's policy to respect the privacy of electronic mail stored on or transmitted through the Hosting Platform. Electronic mail messages may be encrypted by Customers or users. The Provider will not intentionally disclose the content of electronic mail to anyone other than the addressee, authorized recipients, or to those who provide forwarding or delivery services, without the consent of the sender, the recipient, or as required by law. The Provider retains the right to examine electronic mail if it reasonably believes it violates this Agreement, any applicable law, or if the disclosure is required by court order or law enforcement authorities. The Provider may periodically delete unread or archival copies of electronic mail at published intervals and upon the termination of this Agreement.

   (b) Confidentiality. Each party hereby acknowledges that it may be exposed to confidential and proprietary information belonging to the other party or relating to its affairs, including, without limitation, technical information and development techniques, business and financial information, visitor lists, and other information designated by a party as confidential or proprietary. Confidential Information does not include (i) information that is already known or independently developed by the recipient; (ii) information in the public domain through no wrongful act of the party, or (iii) information received by a party from a third party who was free to disclose it. Each party agrees that during the Term, and always thereafter, it shall not use, commercialize or disclose the other party's Confidential Information except in performing its obligations under this Agreement. Each party shall use the same degree of care in safeguarding the other party's Confidential Information as it uses in safeguarding its own Confidential Information, but in no event shall it use less than due diligence and care. Neither party shall alter or remove from any Confidential Information of the other party any proprietary, copyright, trademark, or trade secret legend.

   6.      Non-solicitation.

   During the Term and for a period of one (1) year thereafter, Customer agrees not to hire, solicit nor attempts to solicit the services of any employee or subcontractor of the Provider without the prior written consent of Provider. If an employee is employed, in any way, by the Customer within the period of one-year, liquidated damages fee of $10,000, representing a reasonable estimate of the harm caused, will be charged to the Customer.

   7.      Injunctive Relief.

    The parties acknowledge that violation by one party of the provisions of Section 4 ("Proprietary Rights"), Section 5 ("Confidentiality"), or Section 6 ("Non-solicitation") would cause irreparable harm to the other party not adequately compensable by monetary damages. In addition to other relief, it is agreed that temporary and permanent injunctive relief shall be available without the necessity of posting a bond to prevent any actual or threatened violation of such provisions.

   8.      Force Majeure.

   The Provider is excused from any failure or delay in performance of responsibilities otherwise imposed by this Agreement for any cause beyond its reasonable control. Such causes include, without limitation, fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, transportation, utilities or necessary supplies, governmental action, computer viruses, and incompatible or defective equipment, software, or services not supplied by Provider. Nothing herein enlarges any warranty or diminishes any disclaimer provided in Section 10 ("Warranties").

   9.      Regulation of Certain Content.

   The Provider is a mere distributor and is relying on Customer to prescreen or editorially control the content of Customer's Web Site. The Provider reserves the right to request the removal of information in the Web Site brought to its attention which it deems detrimental to the Hosting Platform or any person.

   Customer agrees not to include on the Web Site any material which violates or infringes the rights of any person or which a reasonable person would consider abusive, profane, or offensive, which is defamatory or harassing, or which violates or encourages others to violate any applicable law. Customer will not disseminate so-called "chain letters," pornographic or obscene movies or graphic images. To protect itself, Provider may without liability actively cooperate with and furnish identifying and supporting information to any person likely to be harmed by Customer's violation of these provisions and to any law enforcement agency serving a warrant or subpoena on the Provider.

   10.   Warranties. The following provisions are subject to Section 11 ("Limitation of Liabilities").

   (a) Non-infringement Warranty. Customer warrants that any technology, information, or material (other than the Provider's own material) distributed through the Web Site will not infringe or misappropriate any copyright, trademark, patent, or the trade secrets of any third persons, or otherwise violate this Agreement or any applicable law. Customer will defend, indemnify and hold the Provider harmless from all liability and expense (including attorney fees) arising from any claim to the contrary.

   (b) Limited Performance Warranty. Provider warrants to Customer that it will make a reasonable effort during the Term of this Agreement to perform its services in a competent and workmanlike manner and to ensure the Web Site operates substantially according to the agreed-to specifications and in compliance with the Year 2000 Standards (meaning the operating system and other components supplied by the Provider can accurately handle 20th and 21st-century four-digit dates). Provider does not warrant that it will be able to correct all reported defects or that use of the Web Site will be uninterrupted or error-free.  Provider makes no warranty regarding features or services provided by third parties (especially Internet telecommunications service or Web "browser" software), which are provided "as is" and "as available." EXCEPT AS SET FORTH ABOVE, THE PROVIDER MAKES NO WARRANTY, EXPRESS, OR IMPLIED. PROVIDER DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION, AND FITNESS FOR A PARTICULAR PURPOSE. STATEMENTS REGARDING THE YEAR 2000 ARE "THE YEAR 2000 READINESS DISCLOSURES" ENTITLED TO CERTAIN PROTECTIONS UNDER FEDERAL LAW.

   (c) No Guarantee of Marketing Results. Customer acknowledges that digital marketing, search engine optimization, advertising, and related services involve variables outside the control of Provider, including but not limited to search engine algorithms, competition, market conditions, and third-party platform policies. Accordingly, Provider makes no guarantee regarding specific results, including but not limited to search engine rankings, website traffic, lead volume, conversions, or revenue. Customer agrees that the failure to achieve any particular outcome shall not constitute a breach of this Agreement.

   11.   Limitation of Liabilities. The following provisions are a material condition of this Agreement and reflect a fair allocation of risk:

   (a) Remedies. Customer agrees that if the Provider violates any warranty or other provision of this Agreement, and Provider determines that repair or other corrective action is not economically or technically feasible, Customer's sole and exclusive remedy will be to obtain a refund of amounts paid by Customer to Provider for services rendered hereunder during the Term hereafter.

   (b) Liabilities. PROVIDER IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE PRICE PAID BY CUSTOMER FOR SERVICES HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO ANY CLAIM. IN NO EVENT SHALL THE PROVIDER 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.

   12.   Termination.
   Either party may suspend or terminate this Agreement if the other party materially breaches any provision and fails within ten (10) days of written notice to correct such default or commence corrective action reasonably acceptable to the aggrieved party and proceed with due diligence to correction. Termination shall have no effect on the parties’ rights and obligations under Section 4 ("Proprietary Rights"), Section 7 ("Warranties"), Section 8 ("Limitation of Liabilities") or Section 14 ("Export Regulations"). For a period of thirty (30) days following termination, the Provider shall upon request include in any Internet web page that it continues to operate at the same domain a public notice of Customer's forwarding URL address and, for a reasonable fee, provide a hyperlink connecting visitors to Customer's new Web Site.

   13.   Disputes, Choice of Law.

   Except for actions for certain injunctive relief authorized under Section 7 ("Injunctive Relief") which may be brought in a court of competent jurisdiction at any time, the parties agree that all disputes shall be submitted to a single arbitrator for non-binding arbitration under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall be limited to remedies otherwise available in court and shall include a written explanation of the decision. If the parties are still unable to reconcile their differences after the arbitrator issues its award the dispute may then be taken to court by either party. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES, AND ANY ACTION SHALL BE INITIATED AND MAINTAINED IN A FORUM OF COMPETENT JURISDICTION IN SUCH A DESIGNATED STATE.

   14.   Export Regulations.

   The transfer of technology across national boundaries is regulated by the U.S. Government. Customer agree not to export or re-export (including by way of electronic transmission) any data or technology derived from its Web Site without first obtaining any required export license or governmental approval. Customer shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce. This provision and the assurances made herein shall survive termination of this Agreement.

   15.   U.S. Government Restricted Rights.

   The Web Site (including underlying technology and documentation) is a "computer database" that constitutes "restricted computer software" and is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in the Rights in Commercial Computer Software clause at DFARS 227.7202-3 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at 48 CFR 52.227-19, as applicable.

   5.      Miscellaneous. This document and any attachments incorporated by reference constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all other communications, whether written or oral. This Agreement may be modified or amended only by a writing request by the party against whom enforcement is sought. Any provision hereof found by a tribunal 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. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occasions. Headings are for reference purposes only and have no substantive effect. Each party and its people are independent contractors in relation to the other party with respect to all matters arising under this Agreement.

   (a) Provider is not responsible for the development of an assemblage of text, graphics, applications, and content supplied to the client or by a Third party. It is the responsibility of the client to provide Provider with such assemblage of text, graphics, applications, and content. Additional costs apply for Provider to work with third parties unless otherwise agreed upon.  Provider cannot and shall not be responsible for any copyright or trademark use of any image or content used within the client's website, even if such images and content have been supplied by Provider.  It is the client's responsibility to review and approve images, graphics, and content.

   (b) During the terms of this agreement, Provider holds the right to:

        (1) incorporate content and a link to MM5DigitalMarketing.com within the footer of the Customers Site.

        (2) connect its Third party user accounts to the Customer Third party user account in order to perform marketing services.

   (c) Provider is not responsible for the Customers’ connection to or relationship with all Third party companies and/or websites. Upon termination of this agreement, it is the responsibility of the client to remove Provider as a user connected to all Third party websites.  Provider cannot be held responsible for the Client's connection or relationship to or with Third party websites after the termination of the agreement.  After termination of the agreement, Provider holds the right to disconnect its connection to all the Clients Third party companies and websites.  Provider cannot be held responsible for the outcome of such disconnection to all the Clients Third party companies and websites.

   (d) Provider holds the right to make changes and updates to these terms. Any material changes will be communicated to the Customer in writing and will apply prospectively.