- “Seller” is eWebResults Marketing Agency
- “EWR” is eWebResults Marketing Agency
- “We” is eWebResults Marketing Agency
- “Client” is client of eWebResults Marketing Agency
- “you” is client of eWebResults Marketing Agency
- “Agreement” is the Master Service and Product Agreement
- “MSA” is the Master Service and Product Agreement
- “SOW” is Statement of Work
- “SLA” is Service Level Agreement
- “SEO” is Search Engine Optimization
- “BBB” is Better Business Bureau
Terms and Conditions
The provision of products and/or services by eWebResults Marketing Agency (EWR or Seller) is governed by this Master Service Agreement and any Service Level Agreements (SLA).
Important information about these Terms and Conditions
These Terms and Conditions constitute a binding contract between Customer and Seller and are referred to herein as either “Terms and Conditions” or “this Agreement”. The Client has accepted these terms and conditions by making a purchase from or placing an order with the Seller or otherwise requesting products (the “Products”) or engaging Seller to perform or procure any Services (as this and all capitalized terms are terms are defined herein). These Terms and Conditions are subject to change without prior notice.
This Agreement services as the most up to date Master Service Agreement. Additional or different terms and conditions contained in any such previous purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of those terms and conditions or any purchase order or invoice or any document in the electronic or written form that is signed and delivered by each of the parties for the performance of Services other than Third Party Services (each, a “Statement of Work” or “Service Level Agreement”). This Agreement contains the entire understanding of the parties with respect to the matters contained herein and the document supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understanding, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
Access & Onboarding
For EWR to successfully complete your project, access is required.
EWR’s projected timelines are based on getting access to all assets within the first no less than 10 business days of the onboarding call with Client. If assets can not be accessed within the first billing cycle a change order will be issued to have new digital assets created or workarounds implemented.
Project expectations and milestones will be pushed back and project clock does not start until we have access.
Digital Asset Management (DAM)
We ask that you provide us with access to all content you have created for your company from sales collateral, to images, videos, or old blogs or newsletter that we can find either online. Also let us know if there is anything you are particularly proud of to make sure we use or content that you would rather “refresh”.
Gaining Access To Your Platforms
We provide documentation on how to provide us access with step by step walkthroughs, in addition to a video explanation. If that is not sufficient, we can schedule a time to do an in person walkthrough with one of our specialist.
If you do not have a platform currently setup that we will be working on, we will first provide the steps for you to be able to set it up yourself, but if needed, we can create the account and then provide you access as well as transfer ownership.
It is important that you stay in close communication with your EWR contact and make sure approvals are done on your end to complete the “virtual handshake” once the request is made
Approval Sign offs Policies
Approvals are an important part of the process and are needed to make sure that your project stays on track as well as your vision and business objectives are being met.
Approvals will affect timelines and billing policies so it is important that approvals happen in a timely manner. All approvals are gated and once an approval is made any adjustments to that milestone will need to be billed as a “change order”.
EWR does accept any written form of tracked communication, including emails, as an official approval. We do not always burden our clients with approval documents.
You Decide Policy
Our policy is that this will still need to be done in an electric form of communication that can be tracked. This will be viewed as an official approval and it is important that you take time to look at what we provide for approval or this will cost us time and you money as if we have to go back and do a change order on the project we will need to charge for the extra work that is done. If you decide to “have us decide” we will also ask in the approval request that you understand that this is counted as an official approval. If we not we will honor your request at our discretion.
Content Approvals Disclaimer
If there are no legal ramifications of the content being improper we have a 36-hour auto-approval process in which we will publish the content and if it does not represent your voice or parts or may be inaccurate we go change it before many visitors see it.
Scope Of Services Policies
In consideration of the mutual covenants, promises, and agreements contained herein, the parties do hereby agree as follows:
Services. EWR will provide a variety of website design and development, website maintenance, corporate brand strategy, Search Engine Optimization (SEO), Video & Photography, Social Media Marketing, PPC Services, as well as digital marketing consulting services or workshops (“Services”) to the Client, as described and authorized from time to time by Service Agreements executed by the Parties (a “Service Agreement”). Each Service Agreement shall identify the nature, scope and location of the Services to be performed and the agreed upon price for the Services. The terms of this MSA shall control the terms of any and all Service Agreement between the Parties unless such Service Agreement specifically identifies this MSA by name and indicates an unequivocal intent by the Parties to modify the terms of this MSA. For the avoidance of doubt, if any document(s) (including any attached pre-printed terms and conditions) provided by EWR conflict with any provision(s) of this MSA, the provision(s) of this MSA shall take precedence and govern, and any such document(s) shall be of no effect whatsoever. The Client shall not be obligated to request and EWR shall not be required to perform any services under this MSA unless the Parties have executed a Service Agreement.
EWR represents and warrants that EWR has the experience and ability, and will perform the Services in a professional and timely manner. If EWR anticipates that it will be unable to meet a certain timeline contained in a Service Agreement, EWR will provide prompt notice to the Client of the nature of such delay and provide a revised timeline for the delayed deliverable.
All hours are typically committed within each project or campaign and we typically value the projects or campaigns as projects. Additional on the exit process are hours needed to successfully transfer access, wind down projects and provide exit summary. There are rarely unused hours at the end of the project, many times we have actually over delivered or on or not charged for services provided when we should have.
Many times clients like to move and shift budgets from month to month on different projects. While we allow up to 2 hours to be shifted to other projects, the bulk of the retainer is already committed to the quarter campaign that was agreed upon. Any additional work will need to be placed in the backlog or we will need to bill you hourly for it as a change order.
Change Orders Policy
A change order is needed when there is a request for services made that is out of the original scope of work of the agreement and/or outside of the 2 hour budget limit. Many times we are flexible on these requests however there are times when a change order will need to be signed before services can be rendered, depending on the size of the project
- Any modification of to the original core services offered such as adding PPC Services or change of SEO retainer package
- Projects inside the original core service agreement that take more than 2 hours to complete
- Changes to a project or campaign after an original milestone or approval check point has already been met.
We typically quote change orders based on their relationship to additional hours and any additional expertise needed to complete the project or campaign, or if pivoting from a current strategy to a new one.
A pivot is considered a NEW project or campaign and typically requires additional strategy, work, kickoff meetings, and approvals.
In most instances since the project scope has increased it will extend the deadline in which the project can be completed or the campaign can be started.
Please refer to the Service Level Agreements (SLA) that you signed for more information regarding SEO.
EWR Policy On PPC
Please refer to the Service Level Agreements (SLA) that you signed for more information regarding PPC.
Website Development Policies
Website warranties on all websites are 30-days from official launch. Any and all provisions would only be included in the optional technical support plan (TSP) or in specific written approval from the website project manager.
Website ownership and full access will be provided once the website is paid off, in full. Until then it’s effectively a lease-to-own plan.
We do provide 0% financing on a website with 6-months or 1-year of marketing purchased.
Please also note that Website Hosting, Website Maintenance (TSP), are all billed as different services and once one is cancelled does not mean all other services will be.
Through our Podcast or Consulting and Coaching services everything we provide is for education purposes only as if you decide to implement any of our suggestions or strategies there is no guarantee of success and you agree to indemnify and hold us harmless for all claims, damages or anything that arising out of you implementing our suggestions or recommendations.
Immediately after your paid consultation or workshop you will be asked if you are satisfied with our services, this will be the only time that you will be able to request a full refund.
We do our best to make sure that our consulting clients have a positive experience and full back the value of our service. Please be cognizant that one-on-one consulting does however put stress on our overall cost structure and we need to bill for our experts time.
We require that all clients that are hosting or doing marketing with EWR have a webmaster on file. The webmaster is needed in case something breaks or the website needs general maintenance or web edits.
If we do not have a webmaster on file with us, we will become your default Webmaster as to provide your website the general maintenance and updates that all websites require in addition to “Web Edits”. Please refer to our Technical Support Plan for more information on this service.
Any revisions, additions, or redesign the Client requests EWR perform that is not specified in the SLA shall be considered “additional” and will be billed as such.
EWR shall advise Client on any requested work that falls outside of the SLA.
Advanced or complex tasks such as a setting up a complete online shopping cart system, installing a booking system, calendar or membership section, custom PHP programming, developing a full site, creating a landing page for advertising, creating a new page on your site that is different from your existing site pages (i.e. anything that involves design and development work), creating a complex form that will take more than an hour to do, etc. should be considered as “additional”.
Emails and Forms
Email Servers are different from web servers. If you are having issues with your emails please contact your email provider. We are not an email service provider.
We can quickly check the forms, but that is rarely the problem. Also If you do have an email issue we can help if that is easier, but know that it is not our fault and we may need to contact your email provider and it may take some time to fix. and all work will be at our billable rate.
We have limited control over 3rd party platforms functional and support and as such we can accept no liability when things change, update, or break. We ask that you direct your support to the platform, if requested.
- All services provided by EWR may be used for lawful purposes only. Transmission, storage or presentation of any information, data or material in violation of any United States federal, state or city law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, or material protected by trade secret and other statute. The subscriber agrees to indemnify and hold harmless EWR from any claims resulting from the use of service which damages the subscriber or any other party. Prohibited are sites that promote any illegal activity or present content that may be damaging to EWR’s servers, or any other server on the Internet. Links to such materials are also prohibited
- Service Usage
- EWR reserves the right to determine which usage is/is not considered excessive as per this policy.
- Any attempt to undermine or cause harm to a server or customer of EWR is strictly prohibited. As our customer you are responsible for all of your accounts. Should you violate the Terms of Services outlined within, EWR reserves the right to cancel or terminate service.
Refusal of Service
- We reserve the right to refuse, cancel or suspend service, at our sole discretion. All sub-networks, distributive hosting sites and dedicated servers of EWR must adhere to the above policies, with the exception of system resources in respect to dedicated servers.
- By the Account Activation Date of each month, EWR shall either: (1) debit the client’s credit card (when such information has been provided by the client); or (2) deliver, by e-mail or regular mail, an invoice in accordance with the applicable Service Fees for services rendered for the current month. When an invoice is delivered to the client, payment shall be remitted to EWR by no later than the specified payment due date. EWR shall be entitled to immediately terminate this agreement for client’s failure to make timely payments. You will be provided with an invoice on a monthly basis. All credit cards are billed automatically on a monthly basis. It is the client’s responsibility to ensure that they have sufficient credit to cover this transaction. In the event that there is insufficient credit, we will send an e-mail notification, at which point we will need to be provided with another credit card account number within 24 hours. If we do not receive a response within 1 business week, the account, and all accounts under that account plan, will be suspended.
- Certain services carry a setup fee charged by EWR to client, which must be paid by client in order to have use of said services. If client terminates this agreement, client shall be responsible for any and all outstanding fees owed to EWR and agrees to pay any and all fees incurred by client. Because the services are provided on a monthly basis, the client will be responsible for service fees incurred each month, regardless of when client provides notice of termination. Thus, for example, if the client provides notice of termination on the 15th day of a particular month, the client will be responsible for service fees for the entire month, and such fees will not be pro-rated or refunded.
- Any account deactivated due to non-payment will require a reactivation fee of $25.00 prior to reactivation.
- We DO NOT refund partial monthly fees to accounts. Depending on your plan we either bill quarterly or monthly, however both require 30 days notice for all cancellation. Cancellation requests may be submitted through our ticketing system.
Limitation of Liability
- EWR shall not be responsible for any claimed damages, including incidental and consequential damages, which may arise from EWR servers going off-line or being unavailable for any reason whatsoever. Furthermore,EWR shall not be responsible for any claimed damages, including incidental or consequential damages, resulting from the corruption or deletion of any web site from one of EWR servers. All damages shall be limited to the immediate termination of service.
- Violations of these Acceptable Use Policies should be referred to abuse [at] EWR. All complaints will be investigated promptly.
- EWR cannot be held liable for system down time, crashes or data loss. We cannot be held liable for any predicated estimate of profits which a client would have gained if their site was functioning. Certain services provided by EWR are resold. Thus, certain equipment, routing, software and programming used by EWR are not directly owned or written by EWR. Moreover, EWR holds no responsibility for the use of our clients’ accounts. Failure to comply with any terms or conditions will result in the automatic deactivation of the account in question. We reserve the right to remove any account, without advance notice for any reason without restitution, as EWR sees fit.
Requesting Change Order from PMIt is important to note that your project manager is in charge of maintaining the client relationship and is responsible for facilitating feedback and requests to the internal project managers in the execution of your project. They do not have the power to modify the agreement, strategy or direction of your campaigns without approvals that are set at the beginning of the quarter. They are there to specifically execute the project SOW as already agreed too. They will need to get approval from the Leadership & Strategy Team first.
Escalation policyIf you are ever concerned or unhappy or have questions about your service we ask that you please bring that issue up as soon as possible so that we can try to rectify the situation as your business is important to us. The best way is to submit a ticket as that will get on management radar quickly.
EWR Specialist PolicyThroughout your relationship with EWR you will meet other specialists and in other departments that will assist on your project. We ask that refrain from contacting these specialists directly unless they reach out to you directly and work all through your Project Manager account manager, if the ticketing system is not sufficient for your requests.
Phone CallsTo ensure we have enough time to dedicate to your account, we ask that you do not impromptu call us. The exception however is if your website is down or if a key feature of your website is not working (forms) or there is anything that is preventing you from doing business online. For all other questions please try to write them down and save them for your Update Call or schedule an additional strategy call. We have found emails that can be tracked and that “batching” requests ensure that things don’t slip through the cracks.
EmailsFirst, please add us to your email “contact list” and we will do so as well so nothing goes to the spam folder so that all email communication is being received. Your PM manager will be checking and responding to emails typically at the beginning and end of every work day as we are not always at our desk. We do however check emails periodically throughout the day. Our expectation is to at least acknowledge client emails within 4 hours and respond within 12-24 hours, unless more time is needed to draft a response. Again, we ask if it’s possible to “batch” requests all at one time during our scheduled time or addressing it in response to a summary email., it This helps ensure all requests are getting handled in the best way possible that is best. In addition, we have created a “new email, per new request” policy to help ensure that nothing gets overlooked. This is also where the ticketing system is most effective. We ask these requests are made that reflect in the subject line of the email. It is important not to make new requests on old email threads as we have found that is the number one way that requests get lost. Please create a new email and send that request only to your PM. If you have any heightened concerns you can include something like, “Action Requested:” at the beginning of the email. We ask that you adhere to this “new email, per new request” policy to ensure a steady flow of communication back and forth and so that all requests are addressed in a timely manner. If you feel that you can submit it as a ticket we ask you to do so: https://support.ewrdigital.com/support/ However, if you feel you do have an emergency regarding your account, please call the office at (713) 587-6237. We ask that you limit communication with our team outside of official channels so that we can better accurately track the activity on your account.
EmergenciesEWR has clients around the globe as well as team members. We do not limit ourselves geographical when hiring the best. Outside of core working hours and on the weekends we do have someone monitoring all our clients digital properties, but it could be overseas. It is not uncommon for a login to come for other parts of the world. If this happens don’t be alarmed, it is us. However, if it’s a complicated problem it may need one of our US based team members to take care of it and that will sometimes need to be addressed Monday when they are back in the office. If it does not prevent you from doing business, please be patient. We will get to it and it’s best to submit it as a ticket so we see it Monday.
Submitting a ticket is one of the best ways we can ensure that you are receiving quality customer support. It allows our teams to capture, manage, and track the status of your issues in an organized and highly-efficient manner.
Our ticketing system is our preferred form of communication, even if you have a PM. However if you do not we request that you use the ticketing system before calling our office.
How to Submit a Ticket
Topic areas of submitting a ticket:
- Accounting: Questions related to your contract, policies, terms, or billing related inquiries
- General: General questions or concerns to you would to have address or escalate
- IT / Technical / Hosting: Every website requires upkeep, some to a greater degree than others. When there is a new issue with your website, such as functionality that was previously there, it is which can commonly be caused by a plugin or wordpress update.s These updates tend to break things thing will break and is why it’s recommended to either have a designated webmaster or utilize our web master plan. (Examples would be if the website goes down, new speed concerns, a button stops working, forms break or general debugging)
- Web Revisions: It’s normal to want to update your information on your website with new employees, services, news, resources, or change text. These are referred to as “Web Edits”, small quick changes to a website that do not change the overall structure. These are very different tasks from our marketing work and are viewed completely different by our team. We ask that you only engage your AMPMs with theseis “Web Edits” if you have already tried the ticketing system and the changes you requested are too complicated to be submitted through a simple punch list.
Please be aware that new requests may be viewed as a “Change Order” if outside the general scope of your marketing project so we encourage you to either have a designated webmaster that can make these changes for you or again encourage you to sign up for our Technical Support Plan.
You can find the ticketing system here: https://support.ewrdigital.com/support/
While we know it’s important for you to have flexibility to make changes to your website, those changes can slow down our marketing efforts. Because of this we have a ticketing system, which allows you to submit website revisions straight to our website team.
Please note, all website edits are batched together every week and have a turnaround time of 5 business days or less. This process happens weekly for all accounts and we do not make changes on the fly, unless it is an emergency change order.
Revisions will be billed at our hourly rate, but if you have a Webmaster Plan with us it includes 1 hour of free revisio
Analytics & Tracking Policies
Deliverables & Deadlines
Each retainer package has defined deliverables that you decide on a quarterly basis based on the scope of work. Each month is broken down into similar task lists working towards a monthly milestone. The milestone has tied to it client deliverables that once completed will be added to the monthly deliverables spreadsheet. Also any additional requests you make will either be added to the backlog for next month or will be added as a change order. Change orders are added as an additional scope of work and will be billed at an hourly rate.
DEADLINES & DELIVERABLES
EWR should respond via email to all requests from Clients within 48 hours or less on weekdays with a confirmation that the request was received as well as an estimated completion date. Requests received after 5:00 pm CST on weekdays may not be completed until the next business day unless prior arrangements have been made.
EWR will make all reasonable efforts to adhere to all quoted deadlines for the deliverables in the Client’s requests. In the event that EWR has any issues in delivering on a quoted deadline, Client will be notified via email the reasoning for any change.
In some instances since the project scope has increased it will extend the deadline in which the project can be completed or the campaign can be started.
Quarterly Business Reviews Policies
- EWR will present a progress report to stakeholders on a quarterly cadence.
- Reviews will focus on performance-to-date of KPIs, as well as which strategies have been successful in driving performance.
- Reviews will additionally highlight forward-looking strategies and tactics EWR will pursue in an effort to hit project goals.
- Reviews will seek to update stakeholders on major updates in Search and how these updates may impact the project roadmap.
DocumentationUpdates to your deliverables are currently kept in a shared Google Sheet that is updated monthly. We try to house all requests and statuses in one place. We have found that clients accounts like this format better than any CRM we could use, as it can be customized for your individual account needs and granularity. Your shared account document and a link to your Google Data Studios should be all you need to keep an eye on the status and progress of your account.
Billing & Payment Policies
Once the agreement is signed we will set up a “Welcome Call” and then start the process to attain access and connect you by email with our billing department.
If you ever have any questions you can always submit a ticket or email email@example.com
We typically do not bill until the day of the “Welcome call” and we start working on your project or campaign unless you autopay.
We have a number of payment options available where you can pay with a credit card with the first payment. However, for the smoothness of accounting we like to set up ACH on an ongoing basis. We also do except checks and you can work with our accounting department to determine what is best.
Our engagements are typical on a 3-month recurring basis. This helps us better strategize and plan out your campaign as well as it gives us flexibility in moving the hours around in your campaign. This flexibility limits the ability to end campaigns “effectively immediately”, because tasks are many times planned a month or more in advance or have redistributed hours across the quarter. We require all accounts to provide a full 30-days notice before canceling on all projects and campaigns.
Contract Breach or Violation:
In the event the client decides to attempt to adjust the agreement prior to the end of the contract “Term” agreed upon, they must provide EWR with a 30-days notice explaining the reason behind the breach of contract. Once accepted by EWR Management, the client has the right to choose any of the following early termination options:
Pause services for a total of 30 days, given a 30 days notice in advance. This option can only be requested (1) time in the duration of the initial contract.
Campaigns will be billed on a 90 day interval, client must honor contract for 90 days (3 Months) after providing 30 days notice. At the end of the 90 days, the client has the right to end services.
To stop services immediately they can buy out the remaining contract at 75% of the total amount.
If agreed upon work has been completed and we have not received payment, we reserve the right to retain that work and all access codes until payment is made. For example, if we are 0% financing a website for you and has been paid off, EWR still owns the website and we reserve the right to retain it as our asset until payment is complete.
Any delay by Client will affect the completion of the Services. In the event of any such delay by
Client, Client agrees to be responsible for EWR fees and any additional costs incurred for any additional work required to be done by EWR. All additional work
necessitated by Client’s delay shall be billed at the rate of $175 per hour.
Client acknowledges that EWR is not responsible and agrees to hold EWR harmless for any
delays or damages resulting from Client’s failure to make such submissions in a timely manner.
If the Client fails to pay any amount properly due under the Agreement by the due date, Client may, after giving three days’ notice to the Client, suspend any work until payment is made in full. EWR reserves the right to withhold delivery of any current work if accounts are not current or overdue invoices are not paid in full. Additionally, a (2%) surcharge will be applied for each time payments are declined.
Third Party Fees
The Client is responsible for all third party fees, including any necessary license fees required to purchase and install new plugins or software on the website. These fees will be communicated to the client in writing before they are incurred.
EWR is a small business, and it is imperative that its clients timely pay for all services EWR provides to its clients. The Client agrees to and shall reimburse EWR for costs and expenses (including attorneys’ fees) incurred in collection under this MSA or any Service Agreement.
Client shall have no right to offset (or to withhold any monies owed) for any claims and shall fully and timely pay all invoices. Any dispute that the Client has with any invoice shall be made within thirty (30) days of the Client’s receipt of such disputed invoice.
Termination of Marketing Services Considerations
When cancelling services it is important to provide clarity regarding Hosting and/or Webmaster services as those are different services outside for marketing.
Please provide direction on Hosting and Webmastering services or those agreements will remain in place. Also refer to the Hosting Section on policies.
Independent Contractor/ Consultant Relationships
This MSA and any Service Agreement evidencing an agreement by the Parties shall establish a contract between independently contracting parties and shall not be construed to create any relationship other than that of an independent contractor relationship between EWR and the Client. Each Party will act and perform independently with respect to the other Party.
Confidentiality; Ownership of Intellectual Property
Confidentiality. EWR agrees to only utilize Client confidential information in order to perform the Services, and shall not disclose Client confidential information to any third party not directly related to providing the Services to the Client.
Any EWR intellectual property that EWR allows the Client to use is strictly pursuant to a limited license for the Client to use such intellectual property only during the term of any applicable Service Agreement, and does not provide the Client any ownership of EWR’s intellectual property, nor right of the Client to use after the termination of the applicable Service Agreement, unless purchased outright relating to creative work as such as Website, Branding, Videography, Photography. If a client would like to purchase all pictures or videos from a shoot the can buy the B Roll and all licenses for an additional charge.
Publicity & Training
EWR is proud of the services it provides its clients, and regularly utilizes examples of its clients’ projects in EWR’s marketing and business development efforts. The Client hereby provides EWR with the right to publicize and publicly display Client websites and projects, and/or provide links to Client websites or projects on EWR’s website, social media, or other marketing and business development efforts.
Sales Marketing and Training
Client agrees to allow eWebResults to utilize details of
the, as created campaign, for the purpose of sales, marketing and training.
Any notice or other communication required or permitted to be given under this MSA or a Service Agreement by a Party to the other Party shall be considered to be given through electronic communication or properly updated here in the MSA agreement on EWR’s Website.
TERM; TERMINATION; AND SURVIVAL OF OBLIGATIONS.
This MSA shall commence on the date hereof and continue until either Party terminates this MSA by providing written notice of termination; provided, however, notwithstanding such termination, the provisions of this MSA shall continue to apply to all Service Agreements in effect until the earlier of the (i) completion of all Services under each Service Agreement, or (ii) termination of each applicable Service Agreement.
EWR shall have the right to immediately terminate this MSA and any Service Agreements by written notice to the Client if the Client shall fail to: (i) Make a payment owed to EWR within thirty (30) days of the due date of a payment; or (ii) Communicate or cooperate with EWR for 10 consecutive business days upon EWR’s request. Upon such notice of termination, all remaining responsibilities of EWR under each Service Agreement shall terminate; The Client will still be responsible for monies owed under each Service Agreement; and the Client will not be entitled to a refund of any monies paid.
Non-Solicitation of Employees.
“Client” understands and acknowledges that EWR has expended and continues to expend significant time and expense in recruiting and training its employees and contractors and the loss of employees or contractors would cause significant and irreparable hard to EWR. During the term of this Agreement and for a period of two (2) year following completion of any work hereunder the “Client”, either directly or indirectly (i) solicit for employment by any individual, corporation, firm, or other business, any employees, consultants, independent contractors, or other service providers of the Company or any of its affiliates, or (ii) solicit any employee or consultant of the Company or any of its affiliates to leave the employment or consulting of or cease providing services to the Company or any of its affiliates; provided, however, that the foregoing clauses (i) and (ii) shall not apply to a general advertisement or solicitation (or any hiring pursuant to such advertisement or solicitation) that is not specifically targeted to such employees or consultants.
(iii) Directly or indirectly induce or solicit any employee or independent contractor of the Company or any subsidiary thereof to terminate his or her employment with the Company for the purpose of joining another company in which the Executive has an interest (whether as an employee, officer, director, agent, security holder, creditor, consultant, or otherwise)
Successor and Assigns
The Client fully understands that EWR may utilize non-employee contractors to assist EWR with providing the Services. Neither Party shall assign or transfer this MSA or any Service Agreement, in whole or in part, without the prior written consent of the other Party, except pursuit to a change of control of a Party. Any purported assignment in violation of the foregoing shall be null and void.
Governing Law Of Arbitration
Governing Law; Venue. This MSA and any Service Agreements shall be governed and construed in accordance with the laws of the State of Texas without regard to its conflict of law provisions. The Parties hereto consent to the jurisdiction and venue of the state and federal courts of Harris County, Texas with respect to all subject matters covered by this MSA, PROVIDED HOWEVER, that the Parties shall first be governed by the binding arbitration provisions as specified below:
Binding Arbitration . Any controversy or claim of every kind arising out of or relating to this MSA or any Service Agreement shall be settled by arbitration administered by the American Arbitration Association pursuant to the Commercial Arbitration Rules of the American Arbitration Association, as modified by any other instructions that the parties may agree upon at the time, except that each Party shall have the right to conduct discovery in any manner and to the extent authorized by the Federal Rules of Civil Procedure as interpreted by the federal courts. If there is any conflict between those Rules and the provisions of this Section, the provisions of this Section 9 shall prevail. The forum for the arbitration shall be Harris County, Texas. There shall be one arbitrator (unless the Parties are able to agree on the necessity of having three (3) arbitrators) selected from a list of possible arbitrators provided by the AAA. If the Parties are unable to agree on such arbitrator within ten (10) days after the initiation of an arbitration proceeding, the arbitrator shall be appointed by the commercial panel of the American Arbitration Association. The arbitrators shall have power and authority to award any remedy or judgment that could be awarded by a court of law in Texas. The award rendered by arbitration shall be final and binding upon the Parties, and judgment upon the award may be entered in any court of competent jurisdiction in the United States. Each Party shall bear its own fees and expenses with respect to the arbitration and any proceeding related thereto and the Parties shall share equally the fees and expenses of the American Arbitration Association and the arbitrators or the BBB.
Exceptions to Arbitration. Notwithstanding anything to the contrary, the Parties may seek injunctive or equitable relief from a court of competent jurisdiction in any state or federal court in Houston, Harris County, Texas without first participating in arbitration through American Arbitration Association or BBB.
If any provision of this MSA or Service Agreement should be held invalid or unenforceable in a court of law in any jurisdiction, such invalidity or unenforceability shall not affect the enforceability of this MSA, a Service Agreement, or any other provision thereof. In addition, the Parties agree that it is their intention that such provision shall be construed in a manner designed to effectuate the purposes of this MSA and any Service Agreement to the fullest extent enforceable under applicable law. The Parties further agree that such ruling shall not affect the construction of that provision or any other of the provisions in any other jurisdiction
DISCLAIMER OF PARTNERSHIP/AGENCY; NO THIRD PARTY BENEFICIARIES.
Each Party agrees that it is not an agent, joint venture or partner of the other Party. Neither this MSA nor any Service Agreement shall be construed to constitute or to create a partnership or a joint venture or any other form of legal association that would impose liability upon a Party for the act or failure to act of the other Party or as providing any Party with the right, power or authority (express or implied) to create any duty or obligation on behalf of the other Party. Except as expressly provided to the contrary in this MSA or a Service Agreement, no third party is intended to be, and no third party shall be deemed to be, a beneficiary of any provision of this MSA or a Service Agreement.
LIMITATION OF LIABILITY.
EWR CANNOT AND DOES NOT GUARANTEE THAT THE FUNCTIONS CONTAINED IN ANY CLIENT WEBSITE, WEB PAGE, TEMPLATE, OR OTHER CLIENT PROJECT WILL ALWAYS BE ERROR-FREE. IN NO EVENT SHALL EWR BE LIABLE TO THE CLIENT IN CONNECTION WITH THIS MSA OR ANY SERVICE AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, FOR ANY: (I) INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, LIQUIDATED, INCIDENTAL OR PUNITIVE DAMAGES; AND/OR (II) LOST PROFITS, LOST REVENUES, LOST BUSINESS EXPECTANCY, BUSINESS INTERRUPTION LOSSES AND/OR BENEFIT OF THE BARGAIN DAMAGES. THIS LIMITATION OF LIABILITY FROM CLIENT TO EWR INCLUDES BUT IS NOT LIMITED TO ALL SUCH DAMAGES ARISING OUT OF THE OPERATION OF OR INABILITY TO OPERATE ANY CLIENT WEBSITE, WEB PAGE, TEMPLATE, OR PROJECT EVEN IF CLIENT ADVISES EWR OF THE POSSIBILITIES OF SUCH DAMAGES. THE FOREGOING SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
In performing the Services, EWR agrees not to design, develop, or provide to the Client any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), privacy, or other rights of any person or entity. If EWR becomes aware of any such possible infringement in the course of performing any Services, EWR shall immediately so notify the Client in writing. EWR’s total liability under this Agreement shall not exceed the total amount paid to EWR by Client for Services performed under the applicable Service Agreement that the alleged or actual infringement occurred under.
Client shall indemnify and hold harmless EWR for all claims and damages arising out of any and all work or performance of professional services on this Project.
Client Representation and Indemnity. The Client represents that photographs, illustrations, graphics, audio clips, video clips, designs, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by the Client to EWR for inclusion in a Client website or other project (“Client’s Content”), are either owned by the Client, or that Client has a license or other permission to publish and use such Client’s Content. The Client understands and agrees that EWR’s incorporation of any of Client’s Content in the provision of EWR’s Services (including but not limited to EWR’s managing or broadcasting of Client’s Content on the Client Website or Client’s social media accounts) constitutes a publishing by Client and not EWR.
The Client shall indemnify and hold harmless EWR (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by EWR as a result of any claim, judgment, or adjudication against EWR related to or arising from (a) Client’s Content, or (b) a claim that EWR’s use of Client’s Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, EWR must: (i) give Client prompt written notice of a claim; and (ii) allow the Client to control, and fully cooperate with the Client in, the defense and all related negotiations.
RisksOnline marketing, like all marketing efforts, comes with inherent risks. We believe it’s important to understand and have the right expectations when doing marketing online. First, we predominantly operate with WordPress, which is an “Open Source”. Open Source means that outside developers can change code to any plugin or WordPress theme they have developed, at any time, and they do not have to follow not always following a standardized protocol. This impacts anything in the rest of the environment in unknown ways. Because of this, things can break on websites, and there is nothing that can prevent this, because this can happen due to pushed updates to plugins or WordPress Updates. Unfortunately, to make matters even more unpredictable, we have no control over some of those updates. When marketing online you have to rely on third party platforms (such as Google, Facebook, etc), which means you are susceptible to their priorities. So, when they make a change to their platform, it’s likely your marketing strategy will have to change as well. Because we have no control over the decisions of any third party platform, we can’t guarantee a particular set of results. However, what we can guarantee is we’ll continue to stay on top of all third party platform changes, adjust when necessary, and give your account the attention it needs to succeed in the marketplace.
ENTIRE AGREEMENT; MODIFICATIONS.
This MSA, and the Service Agreement(s), sets forth the entire agreement and understanding between EWR and the Client as to the subject matter hereof and merges and supersedes all prior discussions, agreements and understandings of any kind and every nature between them. There are no representations, warranties or commitments except as set forth in this MSA. Neither this MSA nor any Service Agreement shall be changed, modified or amended except by a writing signed by both parties. This MSA and any Service Agreement shall be binding upon and shall insure to the benefit of the parties hereto and their respective successors and permitted assigns.