Clickx Master Services Agreement
By using and/or otherwise accessing any of the services offered by Clickx you (“Client”) agree to be bound by the terms of this CLEINT MASTER SERVICES AGREEMENT (“Agreement”). Please read these terms and conditions carefully, as they describe your legal rights and obligations.
Article 1. Definitions.
For the purposes of this Agreement:
1.1. “Additional Proposal” means a written order by Client to Clickx for request for work not defined by Section 3.3 of this Agreement.
1.2. “Clickx” means Clickx, LLC, an Illinois Limited Liability Company with its principal place of business located at 8833 Gross Point Rd., Suite 202, Skokie, IL 60077 and its affiliates and subsidiaries.
1.3. “Client” means Client’s corporate subsidiaries, as well as corporate parents, affiliates, and other related entities approved by Clickx to receive Services under this Agreement
1.4. “Confidential Information” includes, but is not limited to, any data, oral or written, technology, developments, software, methods, trade secrets, services, business plans, clients, and any other material considered confidential by either party regardless of the form or designation of such information. Confidential information is deemed not to include information that (i) is publically available or in the public domain at the time disclosed, (ii) is or becomes publically available or enters the public domain through no fault of Clickx, (iii) is rightfully communicated to Clickx by persons not bound by confidentiality obligations with respect thereto, and (iv) any information which Clickx and Client agree is not Confidential Information.
1.5.“Good Faith”means fair and honest dealing so as not to destroy the rights of the party or parties to receive the benefits of the contract.
1.6.“Intellectual Property” means all trademarks, services marks, trade secrets, copyrights and derivative works thereof, know-how patents, patent applications, moral rights, contractual rights of non-disclosure, or any other intellectual property or proprietary rights.
1.7. “Parties” shall collectively refer to Clickx and Client.
1.8. “Payment Schedule”means a written document from Clickx to Client identifying the payment amount and due dates.
1.9. “Proposal” means any written document or online click-through document provided by Client to Clickx containing the Services as defined by Section 3.1 of this Agreement.
1.10. “Recruit” includes solicited applications for jobs. This does not include unsolicited applications for jobs, responses to public advertisements, or candidates submitted by recruiting firms, without any direct contact between Client and Clickx employees.
1.11. “Services”shall mean the work, jobs, services, goods, deliverables, duties and activities to be performed or provided by Clickx as determined by the Proposal and as limited by Section 3.2 of the Agreement.
1.12. “Subcontractor” means any company or entity with whom Clickx enters into an agreement to perform any of the work or to whom Clickx otherwise delegates any of the work.
1.13. “Unique Client Content” means textual or graphical content which has been provided to Clickx by Client and is of Client origin, or graphical content created by Clickx specifically for the Services.
1.14. “Writing” and/or “Written” means handwritten, printed and mixed paper documents, electronic documents, and facsimiles.
1.15. “You” , “your”, and grammatical variants thereof shall mean you, any other entity which has ownership or other beneficial interest in you, or any other entity in which you have an ownership or otherwise beneficial interest. The use of the words “herein”, “hereof”, “hereunder” and other similar compounds of the word “here” shall refer to this entire CMSA and not to any particular section, paragraph or provision. Section headings are for reference only and shall not affect the meaning or interpretation of this CMSA.
Article 2. Scope of the Agreement
2.1. Clickx’s Work. This Agreement shall control and govern all Services undertaken by Clickx and shall define the rights, obligations, and liabilities of Clickx and Client.
2.2. Client’s Work. Client agrees to provide Clickx with access to its website, technical data, know-how and proprietary information that is reasonably necessary for Clickx to fulfill its obligations under this Agreement.
2.3. Subcontracting. Clickx is free to delegate any work under this Agreement to any third-party without written or oral approval of Client.
2.4. Exclusivity. This Agreement is a non-exclusive agreement between the Parties.
2.5. General.This Agreement constitutes the entire agreement between the parties concerning all the matters herein and supersedes all prior agreements, understandings, letters of intent, negotiations, and discussions between the Parties, whether oral or written. This Agreement cannot be amended or modified other than by a change made in writing, agreed upon, and executed by the Parties. No delay or omission by Clickx or client to exercise any right or power it has under this Agreement or to object to the failure of any covenant of the other party to be performed in a timely and complete manner, shall impair any such right or power to be construed as a waiver of any succeeding breach or any other covenant.
All waivers, outside this Agreement, must be in writing and signed by the party waiving its rights. In the event that any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, in any respect, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provisions of this Agreement shall be valid and enforceable to the extent granted by law.
Article 3. Services, Obligations, and Performance.
3.1. Proposal. All Services provided by Clickx under this Agreement will be described in one or more Proposals. The Proposal must specify the specific service or services ordered from Clickx as described in Section 3.2 of this Agreement.
3.2. Services and Obligations. The Proposal must list one or more Services including Web Design and Maintenance, Search Engine Optimization, and Pay Per Click. The obligations of Clickx are limited to the obligations, duties, timing, and natural limitations for the service or services in the Proposal as described in 3.2.1 for Web Design and Maintenance, 3.2.2 for Search Engine Optimization, and 3.2.3 for Pay Per Click.
3.2.1. Web Design and Maintenance.
(A) Clickx Obligations. If Web Design and Maintenance is listed in the Proposal, Clickx agrees to the following:
(1) Domain Registration. Clickx will secure a domain name for Client at Client’s request. Domain will be registered through Clickx and will be registered in Client’s name unless Client specifies otherwise. The domain name will become the property of Client once final payment is made. If Client already has a domain name, Clickx will coordinate redirecting the address to a new host. Should the Client desire a specific domain name which is already owned by another party, negotiations for said domain name must be undertaken by Client.
(2) Text.Text for website must be supplied by Client in a .doc or .txt format via disk or email attachment. If text is not supplied via disk or email, there will be an additional charge for typesetting and creating text.
(3) Photos. Photos and other graphic images must be supplied by Client.
(4) Scanning. This Agreement covers scanning up to twenty (20) images for Client. It is contemplated that this will accommodate the needs of most Clients. If more than twenty (20) images need to be scanned then an additional charge will apply.
(5) Installation. The finished website will be hosted by Clickx unless Client specifies otherwise in writing. Hosting is not included in the contract price for website design unless specified in the Proposal. Hosting services require a separate Proposal with Clickx or the hosting services of Client’s choice. If Clickx hosts Client’s website, Client shall be billed on a monthly basis at a rate specified in the proposal. If Clickx does not host Client’s website, Client agrees to select a hosting service which allows Clickx full access to the Client’s account via FTP. If Client has no hosting company, Clickx will assist Client in securing hosting at Client’s request. Client will be solely responsible for any and all hosting service charges.
(6) Cross Browser Compatibility. This Agreement contemplates the creation of a website viewable by the newest versions of Firefox, Safari, Chrome, and Internet Explorer. Client should be aware that some advanced techniques on the Internet may require a more recent browser version or plug-in. Client should also be aware that since new browsers are constantly being developed, new browser versions may not be compatible to the site developed by Clickx. Unless specified in the Proposal or entered into a Maintenance Agreement between Clickx and Client, time spent to redesign a website for compatibility due to the introduction of a new browser version will be separately negotiated and an additional charge will apply.
(B) Client Obligations. If Website Design and Maintenance is listed in the Proposal, Client agrees to:
(1) Provide Clickx all necessary access to its website for the purpose of uploading new pages and making changes for the purpose of optimization of approval to go through a third party.
(2) Authorize Clickx use of all Client’s logos, trademarks, website images, and any information deemed reasonably necessary for use in creating informational pages any other use deemed necessary by Clickx.
(3) The content of the web pages will be supplied by Client and executed as specified by Client. If the Client desires additional standard web pages beyond the original number of pages stated in the Proposal, Client and Clickx will negotiate the new price for additional pages.
(4) Where custom graphic work is requested that goes beyond the scope described, it will be billed at the hourly rate specified in the Proposal. Reasonable additions or changes will be performed at no cost, but if the change or addition requires a significant amount of additional work, the hourly rate in the Proposal shall apply. In these circumstances, Clickx will determine what is reasonable.
(5) As outlined in the Proposal, Client agrees to pay Clickx fifty percent (50%) of the total cost at the start of the Agreement. If Client cancels the Agreement at any time, Clickx reserves the right to collect the remaining balance or a reasonable fee for the work completed.
3.2.2. Search Engine Optimization.
(A) Clickx Obligations. If Search Engine Optimization (“SEO”) is listed in the Proposal, Clickx agrees to the following;
(1) Research keywords and phrases to select appropriate, relevant search terms. The number of keywords will be specified in the Proposal. (2) Edit various HTML tags and page texts as necessary prior to submission to selected
(3) Create, as required, additional web pages for the purpose of catching keyword and/or phrase searches.
(4) Create positioning reports for website and any associated pages showing rankings in the listed Search Engine.
(5) If established through a separate Work Order to the Proposal, Clickx will establish advertising of certain Client materials on websites owned and operated by Clickx for the purpose of delivering leads to Client and/or traffic to Client’s website.
(6) If established through a separate Work Order to the Proposal, Clickx will provide a username and password for Client to access Clickx dealer services. Client agrees not to share usernames and passwords with unauthorized users.
(B) Client Obligations. If SEO is listed in the Proposal, Client agrees to:
(1) Provide Clickx all necessary access to its website for the purposes of uploading new pages and making changes for the purpose of optimization or approval to go through a third party.
(2) Authorize Clickx use of all Client logos, trademarks, website images, and anything else reasonably necessary for use in creating informational pages and any other use deemed necessary by Clickx for Search Engine positioning and optimization.
(3) If Client’s website is light in textual context, Client will provide relevant text context in electronic format for the purpose of creating additional web pages. As requested, Client agrees to provide content about each of their keyword phrases.
(4) Client will be responsible for maintaining and renewals of any domain names chosen and purchased by Client through Clickx’s domain registration system or through a third-party website.
(5) Clickx is not responsible for any damage created by Client or agent of Client independently edited or updated webpages after completion of the website.
(6) Client agrees to select a web hosting service that allows Clickx full access to the website to perform services agreed upon by Client and Clickx.
(C) Under the terms of this Agreement, Client realizes the limitations of SEO and accepts and acknowledges the limitations of Clickx over Search Engines. Specifically, Client acknowledges and agrees Clickx shall not be held liable or responsible in any capacity for any of the following limitations which accompany and are a part of Natural SEO Law:
(1) Clickx has no control over the policies of Search Engines with respect to the type of sites and/or content that they accept currently or in the future. Client’s website may be excluded from any directory at any time at the sole discretion of the Search Engine. Should Client’s website be dropped from a Search Engine, Clickx will resubmit those
pages that have been dropped from the index.
(2) Due to the competitiveness of certain keywords and phrases, ongoing changes in Search Engine ranking algorithms, and other competitive factors, Clickx does not guarantee Client top or any other position or consistent top ten (10) position for any keyword or phrase.
(3) Client accepts and agrees that some Search Engines may take up to two (2) to four
(4) months or longer after submissions to list the website.
(4) Client acknowledges that some search engines stop accepting submissions for an indefinite period of time.
(5) Client acknowledges that periodically Search Engines drop listings for no reason and with no advanced warning. These same listings will often reappear without additional submissions. Should the website not reappear, Clickx will re-submit the website based on the current policies of the Search Engine in question.
(6) Client acknowledges that given the dynamic nature of all Search Engines, the Internet and competing entities, it is not possible for Clickx to guarantee specific results.
3.2.3. Pay Per Click
(A) Clickx Obligations. If Pay Per Click is listed in the Proposal, Clickx agrees to:
(1) Clickx will research keywords most relevant to Client’s business and create different ad groups based on the services offered by Client.
(2) Clickx will create, with the support of Client, compelling ad copies to maximize click through rate.
(3) Cost per click is assigned to ad groups based on Search Engine estimates.
(4) Daily campaign budget is assigned Pay Per Click campaign based on Client’s monthly budget.
(5) Client is given an overview of the Pay Per Click campaign before it is set to go live.
(6) Clickx does not guarantee a conversion after a click is reported to Client’s Pay Per Click ads. Conversion is subject to consumer behavior.
(B) Client Obligations. If Pay Per Click is listed in the Proposal, the Client agrees to:
(1) Client understands that prices are service fees and do not include the purchase of the sponsored listings. Any money that Client wishes to go towards the sponsored listing purchases must be paid over and above the service fee. It is completely up to Client’s discretion on how much to budget in sponsored listing purchases each month.
(2) Client understands and acknowledges that if at any time a Search Engine ceases to offer the sponsored listings, refuses services or to provide a sponsored listing to Client,Clickx will not be held responsible.
(3) Client ensures and warrants that all websites are submitted for our services in Good Faith. This includes that the website is compliant with Search Engine content policy, the
submitter of the website is the owner, operator or authorized agent for said website, the website and URL are functional and provide adequate content as to the services and/or products made through the website. Clickx may demand verification if necessary.
(4) Price has already been negotiated with Client and the method of payment is described in an Additional Proposal. Client agrees to pay Clickx 100% of the total costs at the start of the Agreement. This includes budget and service fee costs. If Client cancels the Agreement at any time, Clickx will immediately seize all work for Client and shall be reasonably reimbursed for work done for Client. Clickx will not reimburse the service
fee but will refund the portion of the budget for sponsored listings that has not been used.
3.3. Additional Work. Client may submit an Additional Proposal to Clickx in addition to the Proposal that includes services not described in Section 3.2 with the written consent and agreement of both Parties. The Additional Proposal must be reasonably related to the service(s) selected in the Proposal and includes, but not limited to, display advertising, retargeting, inbound marketing, local search, and social media. The Additional Proposal must reasonably describe the scope of work obligations. An Additional Proposal becomes binding and enforceable after an Authorized Representative of Clickx has responded to Client in writing confirming the Additional Proposal and
indicating the additional payment. After confirmation by an Authorized Representative the Additional Proposal shall be included and part of the Services in the Proposal.
3.4. Performance. The manner and means for accomplishing the Services shall be determined by Clickx. Clickx is an independent contractor with the authority to control and direct the performance and supervision of the services and assigned work. Parties expressly agree that the personnel furnished by or on behalf of Clicks shall not be considered employees, servant, agents, or third-party contractors of Client. Clickx shall perform the Services in a professional manner as detailed in this Agreement, Proposal, and Additional Proposal. Clickx agrees to perform in a diligent, efficient, competent, and skillful manner commensurate with the industry standards and devote resources as necessary to perform the Services required under this Agreement. The proposed timeline for completion is an estimate and Client understands that additional time outside the timeline may be necessary.
Article 4. Terms of Payment.
4.1. Pay Rates. Clickx shall be compensated for its services at rates agreed to by Clickx and Client
prior to entering this Agreement. The rates of pay shall be specified in the Proposal. Nothing in this Agreement shall be construed as sharing of profits or losses arising out of the efforts of one or both Parties. If the Parties cannot agree on applicable pay rates then Clicks has no duty to accept the Proposal or Additional Proposal.
(A) Additional Costs. Client agrees to reimburse Clickx for any critical, Client requested expenses necessary for the completion of the Services. If Client fails to fulfill its obligations under this Agreement and the work is not completed, Client is obligated to pay Clickx based on Clickx’s current hourly rate
4.2. Time of Payment.
Time for payment must be specified in the Payment Schedule. If payment is specified as a standard one-time payment then one-hundred percent (100%) of the payment is required upon signing of this Agreement. If payment between Client and Clickx is specified as a monthly, such payments will begin upon the signing of this Agreement and one-hundred percent (100%) of the agreed payment must be paid prior to any services rendered.
4.3. Cancellation and Suspension.
Client agrees that the payment for services cannot be retracted or refunded once Clickx’s services have been provided. In the event that Client cancels the Proposal without giving Clickx thirty (30) days notice prior to services being complete or Client requests the Services to be suspended for more than sixty (60) consecutive days, Client must submit one-hundred percent (100%) of the payment agreed upon within thirty (30) days after such cancellation or suspension is made.
4.4. Types of Acceptable Payment.
Clickx accepts payments made by credit card and debit card. Payments made by electronic transfer will be accepted only if agreed to in writing by the Parties.
(A) Payment by Credit Card. If Client pays any fees by credit card, Client expressly authorizes Clickx or its agents to charge all fees, charges and expenses incurred under this Agreement to such card, and such authorization will survive termination of this Agreement until there are no fees, charges or expenses owing by Client under this Agreement. If Client uses a credit card and Clickx does not receive payment from card issuer, Client will pay all amounts due, upon demand by Clickx.
For payments not paid within thirty (30) days of the date required in the Payment Schedule, Clickx reserves the right to charge Client a late penalty of 1.5% per month that payment is overdue applied against undisputed overdue amounts or the maximum rate permitted by law, whichever is lesser. Clickx, without waiving any other rights or remedies to which it may be entitled, has the right to suspend or terminated the Services until such payment is received. Clickx has the right to refuse Additional Proposals or work orders from Client and/or seek collection of all amounts due, including reasonable legal fees and costs. Clicks has no liability to Client for any such suspension or termination of Services or non-acceptance of work orders.
4.6. Disputed Payment.
In the event Client withholds payment due and owing to Clicx pursuant to this Agreement and upon resolution of such dispute in favor of Clickx, Client shall pay to Clickx within five (5) days from the resolution of such dispute an amount equal to the amount withheld together with an interest at an annual rate of twelve percent (12%) of such amount or the maximum rate permitted by law, whichever is lesser, from and including the date the withheld payment was originally due. 4.7. Late Payments. Clients failure to pay undisputed fees when due constitutes a material breach of this Agreement. If payment of undisputed fees is not made within thirty (30) days after the due date, Clickx may, in its sole discretion, choose to do any or all of the following: (i) charge Client a late fee on the unpaid balance at the lesser of one percent (1%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly, and/or (ii) suspend Client’s Services, during which time you will continue to be charge for any period of suspension. Clickx’s suspension or resumption of the Services does not limit or prevent Clickx from pursuing all other remedies available.
Article 5. Terms and Termination.
5.1. Terms of Agreement. This Agreement is valid for a period of three (3) months (the “Initial Term”) from the Effective Date and shall automatically renew on a monthly basis thereafter. After Clickx or Client provides written notice of termination, this Agreement shall terminate thirty (30) days from the date the written notice was provided.
5.2. Termination. This Agreement automatically terminates upon completion of the Service or Services specified in the Proposal. Clickx or Client may terminate this Agreement at their convenience by tendering to the other party a Written Notice at least thirty (30) days prior to the date of termination. (A) Material Breach. In the event of a material breach of this Agreement the non-breaching party may elect to terminate the Agreement after being given reasonable notice of the breach and after giving the breaching party reasonable notice of their intent to terminate the Agreement if the breaching party fails to cure the breach or otherwise satisfy the non-
breaching party within ninety (90) days. A material breach includes, but is not limited to, failure to comply with Client Obligations as outline in Article 3; refusal to pay any increased hourly rates, costs, and expenses; failure to follow Clickx’s advice on any matter material to the Service; or if circumstances arise that would render Clcikx’s continuing representation unlawful or unethical.
5.3. Unpaid Charges at Termination. Upon termination of Clickx’s services, whether terminated by Client or by Clickx, all unpaid charges are immediately due and owing and payable to Clickx.
5.4. Survival Beyond Termination. All provisions relating to audit, choice of law venue, dispute resolution, indemnity, insurance, title and warranty, confidentiality, non-solicitation, and intellectual property ownership shall survive termination of this Agreement.
5.5. Title to Deliverables Upon Termination or Completion of Work. Upon payment in full to Clickx of all sums due and owing to Clickx hereunder and upon termination of this Agreement or completion of the Services in the Proposal, whichever comes first, sole and exclusive world-wide rights, title, and interest in all Unique Client Content, intellectual property, documents, drawings, computer printouts, and samples developed by Clickx shall vest in Client and be delivered to Client in atimely manner. Client shall not have the right, title, or interest in any information and knowledge known by Clickx prior to disclosure by Clickx to Client and, except to the extent limited in Article 3.1, any knowledge of Clickx of general application not specific to the Service(s) provided in the Proposal.
Article 6. Indemnities, Liabilities, and Warranties.
6.1. Clickx warrants and represents that (i) it has all the right, title, and interest necessary to provide the Services to You under the terms set forth in this Agreement and each Proposal; (ii) Services will perform materially in accordance with the terms of this Agreement and Proposals; (iii) Services will comply with all applicable laws, codes, regulations, and ordinances in all material respects; (iv) possess the special skill and professional competence, expertise, and experience to undertake the obligations imposed by this Agreement and will utilize best practices in its design and implementation of the Services. Clickx’s warranty obligations will be limited to all warranties and guarantees related to this Agreement and will not extend beyond the terms outline in this Agreement. Notwithstanding anything to the contrary contained elsewhere in this Agreement, no member or employee of Clickx shall be liable to Client for any consequential, incidental, special, exemplary, indirect or punitive damages of any kind or character, including but not limited to, loss of use, loss profit, loss of revenue, loss of business, or lack of leads whenever arising under this Agreement or as a result of, relating to, or in connection with the Services in the Proposal and governed by this Agreement however caused and regardless of legal theory or foreseeability, including but not limited to, website downtime, content of any website or pages, technical malfunction, service provider failure, telecommunications failure, service interruption, computer error, loss of data, or other injury damage or disruption to Client even if Clickx has been alerted to the possibility of such damages. No claim shall be made any member of Clickx or Client against the other party regardless of whether such claim is based or claimed to be based on negligence (including, but not limited to, sole, joint, active, passive, concurrent or gross negligence), fault, breach of warranty, breach of contract, statute, strict liability or otherwise. Clickx makes no warranty of merchantability of fitness for a particular purpose including, without limitation, the success of the services, the performance of the Services, uninterrupted operation, or error-free operation.
6.2. Client’s Warranties and Liabilities. Client warrants and represents that (i) you will comply with all applicable laws, codes, regulations, and ordinances in all material respects; (ii) you have any and all consents and authorizations as may be necessary for Clickx to provide the Service; and (iii) any material submitted does not contain anything leading to an abusive or unethical use. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations or privacy, computer viruses, harassment, any illegal activity, spamming, advocacy of an illegalactivity, and any infringement of privacy. The entire risk as to the quality and performance of the Services is with the Client.
6.3. Warranty Disclaimer. EXCEPT AS SET FORTH HEREIN, CLICKX DISCLAIMS ALL
WARRANTIES, CONDITIONS, OR REPRESENTATIONS (WHETHER THEY BE EXPRESS,IMPLIED, ORAL, OR WRITTEN) WITH RESPECT TO THE SERVICES LISTED IN THEPROPOSAL OR ANY SUPPORT RELATED THERETO, INCLUDING ALL WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING.
6.4. Limitation of Liability. THE PARTIES AGREE THAT ANY AND ALL LIABILITY OF EACH TO THE OTHER FOR ANY AND ALL DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT FROM ANY UNINTENTIONAL CAUSE INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, ERRORS, OMISSION, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY SHALL NOT, IN THE AGGREGATE, EXCEED THE FEES PAID BY CLIENT UNDER THIS AGREEMENT. BOTH PARTIES SHALL USE REASONABLE EFFORTS TO MITIGATE THE DAMAGES FOR WHICH THE OTHER PARTY IS RESPONSIBLE. HOWEVER, IN NO EVENT WILL THE LIMITATIONS APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
6.5. Client’s Indemnification of Clickx. Client agrees that it shall fully defend and indemnify Clickx, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines, penalties, costs and expenses, attorneys’ fees, arbitration fees, mediation fees, expert expense, and all other consequences of any kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations, and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth in Section 6.4, your violation of a third party’s intellectual property rights, violations of rights of privacy and publicity, or breach of any applicable laws, regulations, codes or ordinances. You agree that Clickx shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
Article 7. Insurance.
Clickx and Client shall each procure and maintain or cause to be procured and maintained, at the sole expense of each respective Party and for the duration of this Agreement, insurance policies with financially responsible insurance companies, effective through primary and excess coverage in amounts customary for the nature of this Agreement.
Article 8. Force Majeure.
8.1. Neither party shall be liable for any failure to fulfil its respective obligations, except payment obligations, under this Agreement due to causes beyond its reasonable ability to control including, but not limited to, an event of fire, flood, earthquake, element of nature or act of God, civil disorders, acts of war or armed conflict provided that the party affected by such cause has used and continues to use all reasonable efforts to perform its obligations and makes reasonable attempts to notify the other party in writing within five (5) business days of its inability to fulfil its obligations under this Agreement.
Article 9. General Terms.
9.1. Confidential Information. In the performance of the Services, Parties may have access to Confidential Information which may be designated as being confidential or which, under thecircumstances surrounding disclosure, ought to be treated as confidential. Confidential information may not be shared with third parties unless such disclosure is to personnel of Parties, including employees, agents, and subcontractors on a need-to-know basis in connection with their performance of this Agreement so long
9.2. Intellectual Property Ownership. Client retains full ownership of any intellectual property and Unique Client Content. Client represents to Clickx and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, and/or other artwork furnished to Clickx are owned by Client and the Clien has permission from the rightful owner to use each of these elements.
9.3. Advertising and Publicity. Client hereby grants Clickx a continuous, world-wide license to use and display Client’s name, marks, codes, drawings, specification, case studies, intellectual property, and Unique Client Content in any advertising, press release, promotional effort or publicity of any kind unless Client and Clickx enter into a written agreement to the contrary. Client agrees to feature “Powered by Clickx” on the product(s) of the Service(s) performed by Clickx under the Proposal.
9.4. Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, Client will not recruit, directly or indirectly, any individual employed by Clickx. If Client breaches this clause by hiring a Clickx employee, Client will pay to Clickx two-hundred and fifty thousand dollars ($250,000) as a fee for the benefit obtained by Client and to compensate Clickx for its expenses in hiring and training a replacement employee.
9.5. No Partnership. This Agreement is not intended by the parties to, and shall not constitute, create, give effect to, or otherwise imply a joint venture, pooling agreement, partnership, or formal business organization of any kind between the parties.
9.6. Attorneys’ Fees. If Clickx prevails in a lawsuit, arbitration, or other proceeding of any nature whatsoever instituted in connection with any controversy arising out of this Agreement or to interpret or enforce any rights under this Agreement, Clickx shall be entitled to reimbursement of reasonable attorneys’ fees and costs incurred to enforce its right under this Agreement from Client.
9.7. Expenses. Each party with pay their own respective costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby.
9.8. Dispute Resolution. The Parties agree to resolve any and all disputes, claims, or controversies arising out of or relating to this Agreement, whether in contract or tort law, through confidential, final, and binding arbitration in Chicago, Illinois in accordance with the principles and procedures of JAMS (formerly known as Judicial Arbitration and Mediation Services, Inc.) and per the decision of an accredited arbitrator acceptable to both parties. By agreeing to submit all disputes, claims, and controversies to a binding arbitration, each of the Parties expressly waives its rights to have such matters heard or tried in a court for a judge, jury, or any other tribunal. Any award shall be final, binding, and conclusive upon the Parties, subject only to judicial review provided by statute, and a judgment rendered on the arbitration award may be entered in any state or federal court having jurisdiction thereof. Notwithstanding the foregoing, each Party agrees that before undertaking the aforementioned arbitration, they shall submit all disputes, claims, or controversies to a mutually agreeable mediator in Chicago, Illinois in an attempt to informally resolve said disputes, claims, or controversies without the need for arbitration.
9.9. Choice of Law. The Parties agree that any dispute or controversy arising from or relating to this Agreement the resulting relationship between the parties, whether in contract, tort, or otherwise; whether preexisting, present or future, and including statutory, common law, and equitable claims between Client and Clickx shall be governed by the laws of the State of Illinois.
9.10. Limitation Period. Neither party may institute any action in any form arising out of this Agreement more than one (1) year after the cause of action has arisen. In the case of nonpayment, more than one (1) year from the due date of the last payment.9.11. Judgment Enforceability. Any final award rendered against a Party in any action or proceeding shall be conclusive as to the subject of such final award and may be enforced in other jurisdictions in any manner provided by law.
9.12. Offensive Material. Clickx hereby reserves the right, at its sole discretion, to terminate this Agreement should it be determined that the website involves or contains spam or offensive material. For purposes of this Agreement, offensive material includes content which is pornographic, illegal in the State of Illinois, racially, sexually, faith-based, or gender insensitive, otherwise inflammatory, or that which Clickx determines is in poor taste. Should Clickx determine that the website contains Offensive Material, Clickx will then send notice of termination to Client pursuant to the terms outline in Article 9.24It is also understood that Clickx will not publish information over the Internet which may be used by another party to harm another. Clickx will not promote or advertise a pornographic website for the Client. Clickx reserves the right to determine what is considered pornographic.
9.13. Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors and assigns. Client may not assign either this Agreement or any of its rights or interests hereunder without prior written approval of Clickx.
9.14. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any situation in any other jurisdiction.
9.15. Amendments. This Agreement may not be modified or amended, except by a written document signed by all Parties hereto. The terms of this Agreement may not be waived or orally amended.
9.16. Waivers. The Parties may waive any of the conditions contained herein or any part of the obligations of the other Parties hereunder, but any such waiver shall be effective only if in writing and signed by the Party waiving such conditions or obligations. No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extent to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any of the rights arising by virtue of any prior or subsequent such occurrence.
9.17. Updates. Clickx reserves the right to update its Agreement at any time, effective upon posting an updated version located at firstname.lastname@example.org. However, Client’s rights and obligations shall be as provided in the version of the Agreement executed by Client or available to Client to Client at the time of Client’s purchase of Services or, when applicable, Client’s renewal of Service(s).
9.18. Counterparts. If a signature block is appended hereto, this Agreement may be executed in counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.
9.19. Headings. The descriptive headings contained in this Agreement are inserted for convenience
only and will not control or affect the meaning or interpretation of any of the provisions hereof.
9.20. Construction and Interpretation. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event of an ambiguity of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and not presumption or burden of proof shall arise favoring or disfavoring either Parties by virtue of the authorship of any of the provisions of this Agreement. Any reference to federal, state, local, or foreign statute or law shall be deemed to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The Parties intend the each representation, warranty, and covenant contained herein shall have independent significance. If any party has breached any representation, warranty, or covenant relating to the same subject matter, regardless of the relative levels of specificity, which the other party has not breached, it shall not detract from or mitigate the fact that the party is in breach of the first representation, warranty, or covenant.
9.21. Conflict. In the event of conflict between the terms of this Agreement, the Proposal, Work Order, the terms of this Agreement shall prevail absent a provision to the contrary in the Proposal or Work Order that expressly provides certain terms and provisions shall control over the terms and provisions in this Agreement and only to the extent in which they conflict with this Agreement.
9.22. Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns.
9.23. Parol Evidence. This Agreement sets forth the entire understanding and agreement of the Parties, and supersedes any and all prior written agreements or understandings between Parties as to the subject matter of this Agreement.
9.24. Notices. All notices, demands, or other communication of any type (collectively referred to as “Notices”) given in connection with this Agreement or in any way related to the transaction contracted for herein will be void and of no effect unless given in accordance with the provisions of this Article
(A) All Notices hereunder must be in writing and shall be addressed as follows:
(B) Any notice hereunder shall be deemed duly given and served upon (i) if delivered in person,
(1) If to Clickx:
8833 Gross Point Road, Suite 202
Skokie, IL 60077
(2) If to Client, address it to Client’s last known address. on the day of such delivery, (ii) if by facsimile or email on the day on which such communication was sent provided that receipt of such communication is personally confirmed by telephone or email, and (iii) if by recognized next day courier service, on the first day following the date of dispatch. giving the other Party three (3) days advance written notice of such change of address.
(C) Change of Address. Either Party may change the address for Notice specified above by IN WITNESS HEREOF, the Parties hereto have executed this Agreement by their duly authorized representative.
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