Terms and Conditions

ONLINE MARKETING ARRANGEMENTS – STANDARD TERMS AND CONDITIONS

These online marketing standard terms and conditions (“Marketing Stancons”), dated the date of the related order form (the “Order”) between HARA PARTNERS MARKETING LLC, a New York corporation (“Company”), and the party designated in the Order as client (“Client”). These terms and conditions concerns and respects the purchase by Client of services ordered by Client on the Order (together, the “Services”) to provide online marketing services (the domain specified in this Agreement is sometimes referred to herein as the “Website”). The parties understand, acknowledge and agree that this is an agreement (the “Agreement”) which is being entered into in conjunction with the Order.

PLEASE READ THIS AGREEMENT CAREFULLY.

Client’s subscription for the services described in the Order creates a contract between Client and Company, consisting of the Order and this Agreement, and Client is agreeing to be bound by the terms of this Agreement and all terms and conditions incorporated by reference in this Agreement, including but not limited to Company’s Usage Policies. Client’s use of the services constitutes acceptance of this Agreement.

The parties hereto, intending to be legally bound, do hereby covenant and agree as follows:

1. 1. 1. Specifications. Company agrees to provide Services relating to online and search engine optimization (“SEO”) pursuant to the specifications set forth in the Order.

1. 1. 2. Delivery Dates and Copyright of Deliverables. Company will use commercially reasonable diligence in providing Services and endeavor to deliver to Client all deliverables and milestones. Client acknowledges, however, that all delivery deadlines and the other payment milestones listed in the Order, are estimates, and are not required delivery dates. Company will be retaining all documents, source code, keyword lists and other assets employed or created for Client during the execution of this Agreement. Client will only receive the output formats of Company’s work where applicable. The output is to be used only within the scope of the project as outlined in the Order. Client shall retain all of its intellectual property rights in any text, images or other components it owns and delivers to Company for use in the Services rendered under this Agreement.

1. 1. 3. Services Provided. Services are intended to provide Client with preferential positioning in selected search engines and report results on an ongoing and timely basis. Services may include:
      1. 1. 3.1 Keyword Selection. Company will provide a list of keywords and phrases relevant to Client’s desired search terms.
      
      
      1. 1. 3.2 Analysis. Company will provide an online marketing and SEO analysis.
      
      
      1. 1. 3.3 Website Copy Edits and Website Structure Improvements. Company will create or edit Client’s existing Web Pages to include various HTML tags, content, text or other elements as deemed necessary by Company in order to aid submissions to selected search engines and directories. Company may register additional domains to be used as gateways to deliver Services. Registration shall be in Client’s name and a schedule of fees for maintaining the additional domains shall be billed to Client accordingly. Company may create additional Web Pages for the purpose of targeting specific agreed upon keyword or phrase searches relevant to Client’s business. These Web Pages will be placed in locations determined to be most effective and at Company’s sole discretion. Company may employ proprietary positioning techniques, coding and other resources, as it deems necessary to improve Client’s positioning. Company reserves the right to create specially coded Web Pages to prevent competitors from copying code or any resources employed by Company.
      
      
      1. 1. 3.4 Software. Company may install, update, upgrade and configure the software packages (“the Installation” or the “Software”) as required by the Order, or as deemed beneficial for delivery of Services at the sole discretion of Company. Company may provide rudimentary instructions to Client on using all Software installed by Company. Company may provide a copy of any Software purchased as downloadable link or otherwise determined by Company. Company shall not be responsible for keeping copies, back-ups or any other form of the Software after turning over the original copies to Client. Company will not maintain the Installation, updates, or any daily tasks required for the maintenance of the Software under this Agreement unless otherwise specified in the Order. Company will not manage or maintain copies of licenses for any of the software packages or installations under this Agreement. All licenses for software installations will be turned over to Client upon execution of this Agreement.
      
      
      1. 1. 3.5 Services. Company will individually submit Client’s Web Pages to the search engines and directories as stated in the Order or as deemed best by Company. Company will provide reports for traffic and positioning of Client’s Web Site, Web Pages and any additional Web Sites or custom Web Pages created by Company under this Agreement. Company will provide detailed reports as required by the Order and shall endeavor to provide the reports to Client in a timely manner. Client acknowledges that any reports provided by Company are to be considered estimates based on industry standard reporting software and techniques and shall never be construed as an exact counting of each and every submission. Company will provide editing services and continue to adjust all Web Pages, keywords and other media created under this Agreement for the duration of this Agreement in order to increase the effectiveness of Services.
      
      
      1. 1. Company will maintain regular monitoring and reporting on search engine placement and SEO performance. Reports will be provided to Client on a monthly basis.
      
      
      1. 1. Client acknowledges the following with respect to Services:
            
            1. 1. a) Company accepts no responsibility for policies of third-party search engines, directories or other Web Sites (“Third-Party Resources”) that Company may submit to with respect to the classification or type of content it accepts whether now or in the future. Client’s Web Site or content may be excluded or banned from any Third-Party Resource at any time. Client agrees not to hold Company responsible for any liability or actions taken by Third-Party Resources under this Agreement.
            
            
            1. 1. b) Client acknowledges that the nature of many of the resources Company may employ under this Agreement are competitive in nature. Company does not guarantee number one (1) positions, consistent positioning, “top 10 positions” or guaranteed placement for any particular keyword, phrase or search term. Client acknowledges that Company’s past performance is not indicative of any future results Client may experience.
            
            
            1. 1. c) Client acknowledges that SEO and submissions to search engines and directories can take an indefinite amount of time for inclusion, unless paid inclusion programs are employed. Each edit or change made to any resources employed by Company will repeat these inclusion times.
            
            
            1. 1. d) Client acknowledges that any of the search engines, directories or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time.
            
            
            1. 1. e) Client acknowledges that search engines may drop listings from its database for no apparent or predictable reason. Company shall re-submit resources to the search engine based on the current policies of the search engine in question and whether paid inclusion programs are being used.
            
            
            1. 1. f) Company will endeavor to make every effort to keep Client informed of any changes that Company is made aware of that impact any of the Services and the execution thereof under this Agreement. Client acknowledges that Company may not become aware of changes to Third-Party Resources, industry changes or any other changes that may or may not affect SEO services.
            
            
            1. 1. g) Client acknowledges that some of the Third-Party Resources only offer paid inclusion programs that require a fee or continued maintenance or performance fees. Client is solely responsible for all paid inclusion fees and must maintain adequate funds in any Third-party accounts in order to maintain inclusion in these resources.
            
            
            1. 1. h) Company reserves the exclusive right, for the duration of this Agreement, to approve or disapprove any design strategies, existing code or other techniques, whether requested by Client or presently employed by Client that are considered by Company to be detrimental to SEO and the execution of Company’s Services under this Agreement.
   2. 4. Maintenance. This Agreement does not provide for Website maintenance outside of the Services specified in the Order, unless an additional Website maintenance plan is purchased.

1. 1. 5. Compensation. For all Services under this Agreement, Client shall compensate Company pursuant to the terms set forth in the Order. In the event Client fails to make any of the payments Company has the right, but is not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement, (2) remove equipment, software, services or resources owned by Company, whether leased to Client by Company or not and any Company personnel or staff from Client location(s), (3) bring legal action.

1. 1. 6. Confidentiality. The parties shall hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer-retained information, notes, or financial information, code, programmer’s notes, and computer software. Proprietary or Confidential Information shall not include any information which: is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; was previously known to the receiving party or rightly received by the receiving party from a third party; is independently developed by the receiving party; or is subject to disclosure under court order or other lawful process, but only to the extent of such order or process. The parties shall not make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement, or otherwise required by law. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. In the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Termination or expiration of the Term of this Agreement notwithstanding, Company and Client shall hold any and all Proprietary or Confidential Information confidential hereunder for a period of three (3) years from the later of the date of this Agreement, and the date on which Client ceases to make the Website, or any part of it, available on the Internet.

1. 1. 7. Representations and Warranties.
      a) Company makes the following representations and warranties for the benefit of Client:
      
      1. 1. i. No Conflict. Company is under no obligation or restriction that would in any way interfere or conflict with the work to be performed by Company under this Agreement and the Order. Company is currently working on one or more similar projects for other clients. Provided that those projects do not interfere or conflict with Company’s obligations under this Agreement, those projects shall not constitute a violation of this provision of the Agreement.
      
      
      1. 1. ii. Disclaimer of Warranties. Company does not warrant that the online marketing efforts, Services and its results will meet the client’s requirements or that the operation of the web pages will be uninterrupted or error-free. The entire risk as to the quality and performance of the web pages and the results of the Services is with Client. Except as otherwise specified in this Agreement, Company provides its services “as is” and without warranty of any kind. The limited warranties set forth in this Section are the sole and exclusive warranties provided by each party, and each party disclaims all other warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose, relating to this Agreement, performance or inability to perform under this Agreement, the content, and each party’s computing and distribution system. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
      
      
      1. 1. iii. Limitation of Liability. In no event shall either party be liable to the other for any indirect, special, exemplary or consequential damages, including but not limited to any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from course of dealing or course of performance, lost profits, whether or not foreseeable or alleged to be based on breach of warranty, contract, negligence or strict liability, arising under this Agreement, loss of data, or any performance under this Agreement, even if such party has been advised of the possibility of such damages and notwithstanding the failure of essential purpose of any limited remedy provided herein. The maximum remedy available to either party is any amounts expressly required to be paid by Client to Company hereunder. Company makes no warranty of any kind, whether express or implied, with regard to any third party products, third party content or any software, equipment, or hardware obtained from third parties.
      
      
      1. 1. iv. No Responsibility for Loss. Company will have no responsibility for any third-party disrupting, intruding or otherwise copying files in part or in whole on all or any part of the work performed herein. Company is not responsible for any down time, lost files, improper links or any other loss that may occur in providing Services under this Agreement.
   2. b) Client makes the following representations and warranties for the benefit of Company:
      
      1. 1. i. Client represents to Company and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to
            Company for inclusion in the Website are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Company and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.
      
      
      1. 1. ii. From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of internet electronic commerce.

1. 1. 8. Relationship of Parties.
      
      1. 1. a) Independent Contractor. Company, in rendering performance under this Agreement, shall be deemed an independent contractor, and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Company shall be solely responsible for and shall hold Client harmless from any and all claims for taxes, fees, or costs, including but not limited to withholding tax, income tax, FICA, and workers’ compensation.
      
      
      1. 1. b) No Agency. Client does not undertake by this Agreement, the Order or otherwise to perform any obligation of Company, whether by regulation or contract. In no way is Company to be construed as the agent or to be acting as the agent of Client in any respect, any other provisions of this Agreement to the contrary notwithstanding.
   2. 9. Equipment. Client agrees to make available to Company, for Company’s use in performing the Services required by this Agreement, such items of hardware and software as Client and Company agree are reasonably necessary for such purpose. Client agrees to make available any access to services, hosting, ftp, ssh or other resources deemed necessary by Company to fulfill its obligations under this Agreement.

1. 1. 10. Jurisdiction; Disputes. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of New York. All disputes under this Agreement will be resolved by litigation in the courts of the State of New York, including but not limited to the federal and state courts sitting therein. Each of the parties consents to the jurisdiction of such courts, consents to accept service of process by mail, and hereby waives any jurisdictional or venue defenses otherwise available to it.

1. 1. 11. Agreement Binding on Successors. The provisions of this Agreement will be binding upon and inure to the benefit of each of the parties hereto, and their respective heirs, administrators, successors and assigns.

1. 1. 12. Assignability. Client may not assign this Agreement or its rights or obligations hereunder to any third party without the prior written consent of Company. Company reserves the right to assign subcontractors as needed to this project, to increase the likelihood of on-time completion.

1. 1. 13. Waiver. No waiver by either party of any default shall be deemed a waiver of any prior, contemporaneous or subsequent default of the same or any other provision of this Agreement.

1. 1. 14. Severability. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision, and such invalid term, clause or provision shall be deemed to be severed from this Agreement.

1. 1. 15. Integration. This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof, and revokes and supersedes any and all prior agreements between the parties, and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto, and specifically referring to this Agreement. In the event that any term or provision of this Agreement conflicts with any term or provision hereof, the provisions of this Agreement will govern.

1. 1. 16. No Inference Against Author. No provision of this Agreement will be interpreted against any party because such party or its legal representative drafted such provision.

1. 1. 17. Collection Costs. In the event that Company expends any effort or expense in an attempt to enforce or collect payment of any fees or other amounts due Company hereunder, Client will bear and pay all reasonable costs and fees incurred by Company in connection with the investigation and collection thereof, including but not limited to reasonable fees and expenses of counsel.

1. 1. 18. Interest on Overdue Amounts. Any amounts which become due to Company under this Agreement and which remain unpaid for fifteen (15) days after the date upon which they become due will bear interest at the rate of 15% per annum, compounded monthly, or, if lower, the highest rate permitted by applicable law.

1. 1. 19. Right to Remove Resources. In the event Client fails to make any of the payments set forth herein Company has the right to remove any Services, software, efforts, and resources under Company control until payment is paid in full.

1. 1. 20. Indemnification.
      1. 1. a) Company Indemnity. In performing services under this Agreement, Company shall not design, develop, or provide to Client any items that infringe any patents, copyrights, trademarks or other intellectual property rights (including but not limited to trade secrets), privacy, or other rights of any person or entity. If Company becomes aware of any such possible infringement in the course of performing any work hereunder, Company shall immediately so notify Client in writing. Company shall indemnify, defend, and hold Client harmless from, against and with respect to any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of or relating to the Agreement, the performance of the Agreement, or the Website, other than Client’s responsibilities and Client Content, provided that Client will cooperate fully with Company in connection with investigating, responding to, defending, and avoiding liability for any claim, including but not limited to permitting Company to modify the Website to conform to applicable law or any accommodation reached with a claimant, and Company will have no liability to Client if a necessary accommodation to a claimant requires aesthetic modification of web pages or the Website. This indemnification includes without limitation reasonable attorney’s fees and expenses, except that Company may, at its election, defend against the allegations using counsel reasonably acceptable to Client, and in order to qualify for such defense and payment, Client must: give Company prompt written notice of a claim; and allow Company to control, and fully cooperate with Company in, the defense and all related negotiations. Company’s total liability under this Agreement shall not exceed the amount of the Development Fee actually paid by Client to Company under this Agreement.
      
      
      1. 1. b) Client Indemnity. Client shall indemnify and hold harmless Company (and its subsidiaries, affiliates, directors, officers, agents, employees and contractors) of, from and with respect to any and all loss, cost, claim, damage, liability and expense (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Company as a result of any claim, judgment, or adjudication against Company related to or arising from any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Client to Company (the “Client Content”), or a claim that Company’s use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Company must: give Client prompt written notice of a claim; and allow Client to control, and fully cooperate with Client in, the defense and all related negotiations.
   2. 21. Certain Rights. In addition to all other rights reserved to Company hereunder, Company hereby reserves and retains the right to display Client’s graphics, logos, names, trademarks and trade names, screen shots, and other web design elements of the Website, as examples of Company’s work in its portfolio, and online, digital and printed marketing and promotional material.

1. 1. 22. Company’s Ongoing Business. Anything contained in this Agreement to the contrary notwithstanding, (1) Company is, and may remain, in the business of creating, improving, and providing various services in connection with websites, for Client, for Company itself, and/or for Company clients other than Client; (2) notwithstanding Client’s ownership of the Website and any other rights granted Client under this Agreement, Company may freely, in perpetuity, use all code and attributes of the Website (excluding Client’s trademarks, service marks, and marketing materials), and all know-how associated therewith (together, “Company’s Code, Attributes, and Know-How”); (3) Company may, in its sole and absolute discretion, freely assign to anyone it sees fit, from time to time, ownership of all or any portion of Company’s Code, Attributes, and Know-How; and (4) Company will have the exclusive rights in making any derivative works from any of its work, practices, coding, programming or other work in regards to SEO. [Note: This subparagraph may not be deleted or altered without the prior written acknowledgment of Company counsel.]

1. 1. 23. Identification of Company. Client agrees that Company identification may be annotated, and remain, within the code or on the Web Site as the authors. Client also agrees to put Company’s copyright notices on anything related to Services and the relevant content therein.

1. 1. 24. Notice and Payment.
      
      1. 1. a) Any notice required to be given under this Agreement will be in writing and delivered personally to the other designated party at the addresses listed in the Order, or mailed by certified, registered or express mail, return receipt requested or by FedEx.
      
      
      1. 1. b) Either party may change the address to which notice or payment is to be sent to it, by written notice to the other party under any provision of this Section.
   2. 25. Transfer of Rights. In the event Company is unable to continue maintenance of Services, non-exclusive rights to Services will be granted to Client. Transfer of Rights does not apply to non-transferable Company licenses or third-party licenses and proprietary material owned by any third party or Company.

1. 1. 26. No Consent to Extend Additional Credit. This provision does not constitute a consent or agreement on the part of Company to extend or postpone the time of any payment beyond the scheduled date for payment hereunder.

1. 1. 27. Read and Understood. Each Party acknowledges that it has read and understands this Agreement, and shall be bound by its terms and subject to its conditions.

1. 28. Duly Authorized Representative. Each party represents and warrants to each other party that its representative whose signature appears on the signature page of the Order is duly authorized by all necessary and appropriate corporate actions to execute this Agreement.

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