BY UTILIZING THE SERVICES PROVIDED BY LEAGUEPILOT LLC d/b/a WEBPILOT (“us”, “we”), YOU AGREE TO THE FOLLOWING SERVICE AGREEMENT (“Agreement”) GOVERNING YOUR USE OF SUCH. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT PROCEED AND MAY NOT USE OUR SERVICES.
We are engaged in the business of providing a range of web, software, marketing and technology consulting and implementation services. You desire to retain us to perform certain of such services and functions as more fully-described herein. The parties therefore agree as follows:
This Agreement shall apply to the delivery of information technology services, support, and functions as further described in Statements of Work (“SOW”) that may be proposed and approved by the parties. Any such approved SOW shall be incorporated herein by reference (the services and functions described in any SOW are hereafter referred to as the “Services”). In the event that the scope of the Services is expanded, revised, or modified, for any SOW incorporated herein, the parties shall prepare and sign an amended or new SOW (or Change Order [“CO”]), which likewise shall be attached hereto and incorporated herein by reference. Absent the execution of a SOW, this Agreement does not represent a commitment by you to receive any Services from us or pay us any fees.
TERM OF AGREEMENT
- The term of this Agreement commences on the Effective Date set forth in the SOW (“Effective Date”) and will continue until terminated by either party as provided below (“Term”).
- In the event that the SOW provides for a different Term, the SOW Term will control for that specific SOW only.
- Either party shall have the option to terminate this Agreement, without cause, by providing thirty (30) days’ notice of its intent to terminate the Agreement without cause.
- In the event you request, in writing, to have us complete additional Services identified in a SOW after expiration of this Agreement, the Agreement will automatically renew for the period of time that it takes for the completion of such Services.
FEES AND PAYMENT TERMS
- You agree to pay us for Services in accordance with the fees and milestones identified in the fee schedule set forth in any SOW. Such rates are exclusive of any federal, state, or local sales or use taxes, or any other taxes or fees assessed on, or in connection with any of the Services rendered.
- You will reimburse us for our actual out-of-pocket expenses as reasonably incurred in connection with the performance of Services. Additional expenses for materials, services, training and hardware may only be incurred by us and charged to you with your prior written approval.
- Unless otherwise stated, you shall pay all invoices within fifteen (15) days of receipt. Payments not made within such time period shall be subject to late charges equal to the lesser of (a) 1.5% per month of the overdue amount or (b) the maximum amount permitted under applicable law. In addition, you shall be responsible for any costs incurred by us in the collection of unpaid invoices including, but not limited to, collection and filing costs and attorney’s fees.
CHANGE ORDERS OR OUT OF SCOPE SERVICES
To the extent that you require or request additional services or services that exceed the Services set forth in any SOW incorporated herein, we will set forth such additional services and fees on a Change Authorization Order (CAO). Once a CAO is signed by both parties, it will be incorporated into the Agreement and have the same legal effect as the SOW that is incorporated into the Agreement.
OWNERSHIP OF MATERIALS RELATED TO SERVICES
Unless otherwise agreed by the parties in writing, all creative content developed, created or commissioned by us exclusively in the course of performance of the Services which are incorporated into and delivered as part of the Final Deliverables, and which do not constitute Preliminary Works, Preexisting Technology, Developed Technology or Generic Components (each as defined below), shall be considered works made for hire, and all rights, title, and interests of such materials shall be and are assigned to you as your sole and exclusive property upon payment.
However, as our performance of the Services will require our skills and expertise, we retain the right to use, without fee and for any purpose, such “know-how”, ideas, techniques and concepts used or developed by us in the course of performance of the Services. You grant us a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Final Deliverables and publicly describe our role in the Project for purposes of promotion and professional recognition.
Without limiting the foregoing, we and our licensors reserve and retain ownership to all Preliminary Works, Preexisting Technology, Developed Technology and Generic Components, and we grant to you a non-exclusive, fully paid, limited license to use them solely in connection with your use of the Services.
- Preliminary Works means all of our inventions (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools which may or may not be shown and or delivered to you for consideration but do not form part of the Final Deliverables.
- Preexisting Technology means all of our inventions (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Services.
- Developed Technology means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated intellectual property rights thereto developed by us or our Personnel in connection with providing Services that derive from, improve, enhance or modify our Preexisting Technology.
- Generic Components means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by us or our Personnel in connection with providing Services generally to support our product and/or service offerings (including, without limitation the Services) and which can be so used without use of your Confidential Information.
All Third Party Materials incorporated into the final deliverables, including without limitation stock photography or software components, are the exclusive property of their respective owners. We will inform you of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Deliverables. In those cases we will inform you of any need to obtain the license(s) necessary, at your expense, to permit your use of those materials consistent with the usage rights granted herein.
- The receiving party will not disclose the disclosing party’s Confidential Information to any third party without the prior written consent of the disclosing party and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors, or consultants.
- Our Confidential Information shall include the terms set forth in this Agreement, all of which shall remain our property and shall in no event be transferred, conveyed, or assigned to you as a result of the services provided pursuant to this Agreement.
- The foregoing duty shall survive any termination or expiration of this Agreement.
- You agree to not use our Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to ours.
- The following shall not be considered Confidential Information for purposes of this Agreement:
- Information which is or enters the public domain through no fault or act of the receiving party;
- Information which was independently developed by the receiving party without the use of or reliance on the disclosing party’s Confidential Information;
- Information which was provided to the receiving party by a third party under no duty of confidentiality to the disclosing party; or
- Information which is required to be disclosed by law with no further obligation of confidentiality, provided, however, prompt prior notice thereof shall be given to the party whose Confidential Information is involved.
- The parties agree that the disclosure of any of the foregoing Confidential Information by either party shall give rise to irreparable injury to the owner of the Confidential Information, inadequately compensable in monetary damages. Accordingly, the nondisclosing party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any legal remedies which may be available.
NONSOLICITATION OF EMPLOYEES
WARRANTY OF SERVICES
LIMITATION OF LIABILITY
- Termination for Cause: If either party believes that the other party has failed in any material respect to perform its obligations under this Agreement (including any Exhibits or Amendments hereto), then that party may provide written notice to the other, describing the alleged failure in reasonable detail. The breaching party shall have thirty (30) business days after notice of such failure to cure the breach, otherwise the non-breaching party may immediately terminate this Agreement, in whole or in part, for cause by providing written notice.
- Termination for Bankruptcy: Either party shall have the immediate right to terminate this Agreement, by providing written notice to the other party, in the event that (i) the other party becomes insolvent, enters into receivership, is the subject of a voluntary or involuntary bankruptcy proceeding, or makes an assignment for the benefit of creditors; or (ii) a substantial part of the other party’s property becomes subject to any levy, seizure, assignment or sale for or by any creditor or government agency.
- Payments Due: The termination of this Agreement shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable.
- Permitted Delays: Each party hereto shall be excused from performance hereunder for any period and to the extent that it is prevented from performing any services pursuant hereto in whole or in part, as a result of delays caused by the other party or an act of God, or other cause beyond its reasonable control and which it could not have prevented by reasonable precautions. Such nonperformance shall not be a default hereunder or a ground for termination hereof. Our time of performance shall be enlarged, if and to the extent reasonably necessary, in the event:
- that Client fails to submit information, instructions, approvals, or any other required element in the prescribed form or in accordance with the agreed upon schedules;
- of a special request by Client or any governmental agency authorized to regulate, supervise, or impact Provider’s normal processing schedule;
- that Client fails to provide any equipment, software, premises or performance called for by this Agreement, and the same is necessary for Provider’s performance hereunder. We will notify you of the estimated impact on its processing schedule, if any.
- Continuation of Services: We will continue to perform Services during the notice period unless otherwise mutually agreed upon by the parties in writing. In the event that you provide the notice of termination and direct us not to perform the Services through the notice period, you agree to pay us an amount equal to the amount normally due to us for the notice period. Upon termination by either party, you will pay us for all Services performed and charges and expenses reasonably incurred by us in connection with the Services provided under this Agreement through the date of termination.
- Non-Restrictive Relationship. We may provide similar services to other customers that are competitive with Client and Client may utilize other service providers that are competitive with us.
- Waiver. The rights and remedies provided to each of the parties herein shall be cumulative and in addition to any other rights and remedies provided by law or otherwise. Any failure in the exercise by either party of its right to terminate this Agreement or to enforce any provision of this Agreement for default or violation by the other party shall not prejudice such party’s rights of termination or enforcement for any further or other’s default or violation or be deemed a waiver or forfeiture of those rights.
- Force Majeure. Neither party will be liable to the other for failure to perform its obligations hereunder if and to the extent that such failure to perform results from causes beyond its control, including and without limitation: strikes, lockouts, or other industrial disturbances; civil disturbances; fires; acts of God; acts of a public enemy; compliance with any regulations, order, or requirement of any governmental body or agency; or inability to obtain transportation or necessary materials in the open market.
- Notices. All notices required under or regarding this Agreement will be in writing and will be considered if delivered personally, mailed via registered or certified mail (return receipt requested and postage prepaid), given by facsimile/email (confirmed by certification of receipt), or sent by courier (confirmed by receipt) addressed to a company executive or principal at the address provided in the introductory clause.
- Severability. If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement will not be affected.
- Captions. The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
- Entire Agreement. This Agreement and the SOW(s) and/or CAO(s) incorporated herein constitute the entire agreement between the parties and supersede any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement.
- Amendments. This Agreement and the Exhibits may be amended only by an instrument in writing executed by the parties. Any written work order submitted by you shall not amend the terms of this Agreement and will only be considered (1) a statement of the work to be performed; (2) set forth any deadlines or schedules; and (3) the additional fees to be charged, if any, for any out of scope work or services stated on the work order.
- Applicable Law. This Agreement is made under and will be construed in accordance with the law of New York without giving effect to that state’s choice of law rules.
- Successors and Third Party Beneficiaries. This Agreement shall inure to the benefit of each party and any of its successors or assigns. No third party shall have any rights hereunder.
SEARCH ENGINE OPTIMIZATION & MARKETING DISCLAIMERS
- SEO and SEM strategies are constantly changing and are based on search engine ranking algorithms which change sporadically and are entirely outside of our control. Accordingly, your search engine ranking may decrease below its current ranking or rank inconsistently during the term of this Agreement. We shall have no liability for such decreases or fluctuations. Your sole remedy shall be to terminate this Agreement.
- We do not guarantee #1 positions, consistent positioning, “top 10 positions” or guaranteed placement for any particular keyword, phrase or search term. You acknowledge that our past performance is not indicative of any future results you may experience.
- We are not responsible for policies of third-party search engines, directories or other Web Pages (“Third-Party Resources”) that we may submit the SEO Services to with respect to the classification or type of content accepted by Third-Party Resources whether now or in the future. Your Web Pages content may be excluded or banned from any Third-Party Resource at any time. We are not responsible for any liability or actions taken by Third-Party Resources against you or your Web Pages as a result of the Services. We are not responsible for any down time, lost files, improper links or any other loss that may occur in the operation of the Services under this Agreement.
- We do not warrant that the SEO Services will be accepted by Third-Party Resources by any given date. Submission of the SEO Services to Third-Party Resources can take an indefinite amount of time for inclusion, unless paid inclusion programs are employed. Each edit or change made to any of the Services employed by us will repeat these inclusion times.
- Third-Party Resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time and may drop listings from their databases for no apparent or predictable reason. However, we shall not be responsible for the decision of Third-Party Resources to block, prevent, stop accepting your submissions or to drop your listing(s) for any time period.
- You acknowledge that some Third-Party Resources only offer paid inclusion programs, which require a fee for inclusion in the program or continued maintenance or performance fees. You are solely responsible for all paid inclusion fees and must maintain adequate funds to maintain inclusion in these Third-Party Resources.
- You acknowledge that changes to your domain names (“URL”) during the term of this Agreement may cause the ranking for such domain name to decrease.