- “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 & 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
2. PAYMENT FOR SERVICES
4. CONFIDENTIAL INFORMATION
7. TERM AND TERMINATION
8. CONTRACT REPRESENTATIVE
11. LIMITED WARRANTY AND INDEMNIFICATION
EWR warrants to Client that the Services will be of the kind and quality designated in the Statement of Work and will be performed by qualified personnel. All special requirements for format standards or methods to be followed shall be included in the Statement of Work and executed by both Client and EWR. In the event of a breach of the foregoing warranty, EWR’s sole obligation shall be to correct any material error so as to bring the Deliverables into compliance therewith. Any claim for breach of the foregoing warranty must be made by written notice to EWR within thirty (30) days of EWR’s delivery of the Deliverables. This is a contract for services and is not governed by the Uniform Commercial Code.
EXCEPT AS PROVIDED IN THIS SECTION, EWR MAKES NO OTHER WARRANTIES OR REPRESENTATIONS WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, ORAL OR WRITTEN STATEMENTS OF EWR, ITS AGENTS, OFFICERS, SHAREHOLDERS, SUBCONTRACTORS OR OTHERWISE, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 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 STATEMENT OF WORK, 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.
Client understands and agrees that EWR shall have no responsibility for or be liable for to any extent for any hardware, software or other items or property manufactured or prepared by anyone not a party to this Agreement.
With the exception of EWR’s Indemnification obligations listed herein and any intentional or grossly negligent act by EWR which causes personal injury or damage to tangible property, the Parties agree that in no event shall EWR’s total liability to Client, regardless of the character or type of damages sought, exceed the amount received pursuant to the relevant Statement of Work. The provisions of this Agreement allocate the risks between the Parties. EWR’s pricing reflects this allocation of risk and the limitation of liability specified herein.
No actions or disputes, regardless of form, arising out of any Services, may be brought by either Party more than one (1) year after the termination of this Agreement.
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 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 Statement of Work that the alleged or actual infringement occurred under.
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.
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 out of any and all work or performance of professional services on this Project including but not limited to (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.
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.
12. FORCE MAJEURE
13. COMPLETE AGREEMENT
14. APPLICABLE LAWS
This Agreement shall be construed in accordance with the laws of the State of Texas without application of principles of conflicts of laws.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 Agreement, 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 Agreement or any Statement of Work 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 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.
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.