Development Services: OnTopVisibility agrees to provide Customer with services to develop, integrate, manage and support an OnTopVisibility Listing Marketing Program based upon OnTopVisibility proprietary software applications with the major search engine(s). OnTopVisibility will custom develop a new website for Customer (if applicable), and will quality test/control, host online and support OnTopVisibility proprietary software for the duration of this Agreement. The services will include real time internet functionality tools such as reporting functions, marketing statistics, schedules if applicable, and stats generated by the above internet. Except as expressly provided herein, Customer acknowledges and agrees that OnTopVisibility is only responsible for providing and limited to the Development Services, SEO, Social Media, PPC, and OnTopVisibility Local Listing.
Domain Name Registration: Customer warrants and represents that it is the exclusive owner and registrant of (name to be selected or provided), and that it has free and clear title to the same. As a condition to OnTopVisibility performance of the subject services herein, and during the term of this Agreement, Customer warrants and represents that the subject domain name does not violate any InterNIC or other registration services’ policies, or any law or regulation, and that all applicable registration fees have been currently paid. Customer further agrees to promptly reimburse to OnTopVisibility for any fees paid by OnTopVisibility to InterNIC or other registration services with respect to the registration and maintenance of such domain name, if applicable.
Domain Name Disputes: In the event of any dispute or cause of action arising out of or related to Customer domain name used in connection with the Website, OnTopVisibility shall have the right to: (a) terminate this Agreement; or (b) demand that Customer indemnify OnTopVisibility in accordance with the provisions of paragraph “6”herein.
Should Customer receive notice of a claim regarding the domain name and/or Website, Customer shall promptly provide OnTopVisibility with written notice of such claim as provided herein.
- License and Proprietary Rights:
2.1 Proprietary Rights of OnTopVisibility: All materials, including but not limited to any computer software (in object code and source code form), data or information developed, including but not limited to OnTopVisibility information and Customer lists, coding, content, images, artwork, and logos, provided, developed, or enhanced, by OnTopVisibility or its suppliers under this Agreement, and any know-how, methodologies, equipment, or processes used by OnTopVisibility to provide the Services to Customer , including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively “OnTopVisibility Materials”) shall remain the sole and exclusive property of OnTopVisibility or its suppliers. To the extent, if any, that ownership of the OnTopVisibility Materials does not automatically vest in OnTopVisibility by virtue of this Agreement or otherwise, Customer hereby transfers and assigns to OnTopVisibility any and all rights, title and interest which Customer may have in and to the OnTopVisibility Materials. Customer acknowledges and agrees that OnTopVisibility is, among other things, in the business of designing and hosting Websites, and that OnTopVisibility shall have the right to provide to third parties services which are the same or similar to the Services provided herein, and to use or otherwise exploit any OnTopVisibility Materials in providing such services.
2.2 Confidentiality: Each Party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other Party, including, but not limited to software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, Customer/client lists, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving Party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party, (b) was known to the receiving Party as of the time of its disclosure, (c) is independently developed by the receiving Party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing Party. Except as provided for in this Agreement, each Party shall not use or make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each Party shall notify its employees and their Independent Contractors (an “IC”), with a need to know, of their confidentiality obligations with respect to the Confidential Information and shall require its employees and IC’s to comply with these obligations. The confidentiality obligations of each Party and its employees shall survive the expiration or termination of this Agreement.
Customer acknowledges that all clients of OnTopVisibility, or prospective clients of OnTopVisibility, that Customer may come in contact with, either directly or indirectly, remain the client, property and asset of OnTopVisibility. Customer further agrees and covenants that because of the confidential and sensitive nature of the Confidential Information and the use or even the appearance of the use of the Confidential Information in certain circumstances may cause irreparable damage to OnTopVisibility and/or the clients/customer of OnTopVisibility, and its reputation, Customer shall not, directly or indirectly, contact, solicit, or engage, OnTopVisibility client(s)/customer(s), by any means or through any corporation(s), parents, subsidiaries, affiliates or associates in any business, enterprise or employment which may be directly competitive with OnTopVisibility.
Additionally, because of OnTopVisibility sensitive Confidential Information and proprietary software, Customer further acknowledges and agrees that it will not perform for itself or any other individual or entity, Search Engine Marketing and marketing over the Internet.
- Fees and Taxes:
4.1 OnTopVisibility Service Fees: Customer shall pay OnTopVisibility all fees for Services in accordance with the applicable fee and payment schedule via PayPal, credit card or check.
OnTopVisibility expressly reserves the right to change its rates charged hereunder for the Services during any Renewal Term (as defined herein).
4.2 Additional Services Fees: Unless otherwise agreed to in writing and/or electronic signature, Customer shall pay to OnTopVisibility all fees for Additional Services on a time and materials basis as invoiced by OnTopVisibility.
5.1 OnTopVisibility Warranties: OnTopVisibility represents and warrants that: (a) it has the power and authority to enter into and perform its obligations under this Agreement; and (b) its Services under this Agreement shall be performed in a workmanlike manner.
5.2 Customer Warranties: Customer represents and warrants that:
(a) it has the power and authority to enter into and perform its obligations under this Agreement;
(b) it is the exclusive owner and registrant of the website address and all content and images provided to OnTopVisibility, and that it has free and clear title to the same; (c) the subject domain name does not violate any InterNIC or other registration services’ policies, or any law or regulation; and (d) all applicable registration fees concerning the website address, have been paid.
5.3 Disclaimer of Warranty:
Except for the limited warranty set forth in Section 5.1, On Top Visibility makes no warranties hereunder, and On Top Visibility expressly disclaims all other warranties, express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose.
6.1 Customer : Customer agrees to indemnify, defend, and hold harmless OnTopVisibility, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, judgment, debt or liability, including reasonable attorneys’ fees, costs and disbursements, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Customer representations, warranties, or agreements hereunder; (ii) arises out of the gross negligence or willful misconduct of Customer; (iii) arises out of the general business of Customer; or (iv) any Content provided by Customer to OnTopVisibility hereunder infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses
6.2 Notice: In claiming any indemnification hereunder, OnTopVisibility shall provide Customer with written notice of any claim which OnTopVisibility believes falls within the scope of the foregoing paragraphs. Customer may, at its own expense, with OnTopVisibility’s prior written consent, assist in the defense if it so chooses, provided that OnTopVisibility shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind OnTopVisibility shall not be final without OnTopVisibility’s written consent.
- Limitation of Liability:
OnTopVisibility shall have no liability for unauthorized access to, or alteration, theft of destruction of, the website or Customer data files, programs or information through accident, fraudulent means or devices. OnTopVisibility shall have no liability with respect to OnTopVisibility”obligations under this Agreement or otherwise for consequential, exemplary, special, incidental, including any claim for loss of profit or losses due to business interruption, or punitive damages even if OnTopVisibility has been advised of the possibility of such damages. In any event, the maximum liability of OnTopVisibility to Customer for any reason and upon any cause of action shall be limited to the net amount actually received by OnTopVisibility under this Agreement during the three (3) months immediately preceding the date on which such claim accrued. This limitation applies to all causes of action in aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, infringement, fraud, misrepresentation, and other torts.
- Termination and Renewal:
8.1 Term: This Agreement shall be effective when signed by the Parties and thereafter shall remain in effect for twelve (12) months, unless earlier terminated as otherwise provided in this Agreement (the “Initial Term”). This Agreement shall be automatically renewed beyond the Initial Term for additional twelve (12) month terms (each, a “Renewal Term”) unless Customer provides OnTopVisibility with a written notice of termination at least forty-five (45) days prior to the expiration of the Initial Term, or the then-current Renewal Term.
8.2 Termination: Notwithstanding the above, either Party may terminate this Agreement if a bankruptcy proceeding is instituted against the other Party, or the other Party materially breaches any of its representations, warranties or obligations under this Agreement, and such breach is not cured within ten (10) days of receipt of written notice specifying the breach.
Moreover, OnTopVisibility may terminate this Agreement at any time and for any reason by providing written notice of termination to Customer.
9.1 Entire Agreement: This Agreement and attached Schedules constitute the entire agreement between Customer and OnTopVisibility with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement, whether oral or written.
9.2 Cooperation: The Parties acknowledge and agree that successful completion of the Services shall require the full and mutual good faith cooperation of each of the Parties.
9.3 Independent Contractors: The relationship hereby established between OnTopVisibility and Customer is solely that of independent contractors.
9.4 Limitation of Agreement: The relationship of OnTopVisibility and Customer hereunder is also limited to the respective rights and obligations of the Parties concerning contracted services, the development of the new Customer website, and the use of OnTopVisibility”proprietary software, as specifically provided herein. Notwithstanding any other provision of this Agreement to the contrary, nothing herein shall be construed to create a partnership or joint venture between the Parties, to authorize either Party to act as an agent for the other, to permit either Party to undertake any agreement for the other, or to use the name or identifying mark of the other, all except as is specifically provided herein.
9.5 Amendments: No amendment, change, waiver, or discharge hereof shall be valid unless in writing by OnTopVisibility.
9.6 Customer Identification OnTopVisibility may use the name of and identify Customer, in advertising, publicity, or similar materials distributed or displayed to prospective Clients.
9.7 Force Majeure: Except for the payment of fees by Customer, if the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, terrorism, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either Party, that Party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
9.8 New York Law: This Agreement shall be governed in all respects by the laws of the State of New York without regard to its conflict of law provisions, and Customer and OnTopVisibility agree that the sole and exclusive venue and jurisdiction for disputes arising from this Agreement shall be in a court of competent jurisdiction within the state or federal court located in the County of Suffolk, State of New York, and Customer and OnTopVisibility hereby submit to the jurisdiction of such court(s).
9.9 Assignment: Customer may not assign any of its rights, duties or obligations herein without the prior written consent of OnTopVisibility. OnTopVisibility may assign, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise.
9.10 Notice: Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given: (i) if by hand delivery, upon receipt thereof; (ii) if mailed, with postage prepaid, by certified mail return receipt requested, upon receipt thereof; or (iii) if by next day delivery service, upon such delivery. All notices shall be sent to the address of the Party set forth above (or such other address as either Party may in the future specify in writing to the other).
9.11 Waiver: The waiver or failure of either Party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain in full force and effect.
9.13 Approvals and Similar Actions: Where agreement, approval, acceptance, consent or similar action by either Party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
9.14 Survival: All provisions of this Agreement relating to Customer warranties, confidentiality, non-disclosure, proprietary rights, and limitation of liability, Customer indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.