Digital Marketing Services Agreement


Date: 

Digital Advertising & Marketing Services Agreement between: 

On The Mark Digital and  (“ The Client”).

Recitals

  1. Company has experience and expertise in the development of Digital Advertising & Marketing Strategies for Web Pages, Web Sites and other Computer Networks.
  2. Customer desires to have Company develop and deploy Digital Advertising & Marketing Strategies, custom programming, keyword optimization and other services as purchased from the Company website products.
  3. Company desires to develop Customer’s Digital Advertising & Marketing Strategy and Services on the terms and conditions set forth in this agreement.

Agreements

In consideration of the mutual covenants set forth in this Agreement, Customer and Company hereby agree as follows:

  1. Development of Digital Advertising & Marketing Strategy and Optimization Services.

    The Company agrees to create, install, manage, develop and employ custom Digital Advertising & Marketing strategies according to the package and terms purchased.

  2. Specifications.

    Company agrees to complete the Digital Advertising & Marketing tasks pursuant to the Specifications within each Digital Advertising & Marketing package as defined by the Company. Company will commence Digital Advertising & Marketing tasks on the following URL only:   

  3. Delivery Dates and Milestones.

    Company will use reasonable diligence in the development of the Digital Advertising & Marketing services and endeavor to deliver to Customer all deliverables and milestones monthly. Customer acknowledges, however, that delivery deadlines 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 Customer during the execution of this agreement. Customer will only receive the output formats of Company’s work where applicable. Customer 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 Digital Advertising & Marketing services rendered under this agreement

  4. Services Agreement Length.

    Customer acknowledges the following length of this agreement in accordance with Digital Advertising & Marketing Plan Selected. This agreement shall be set forth and considered binding for a Month-by-Month term.

    1. Term Length Cancellation

      Customer shall have the option, 30 days prior to the expiration of the term length, to cancel this agreement by providing a written notice of intent to cancel, at the end of term length. Customer acknowledges that this agreement shall remain binding at the expiration of the selected initial term length in the event the Customer fails to submit a written request to cancel Digital Advertising & Marketing Services. Customer acknowledges this agreement shall continue as a Month-by-Month term length until canceled. 

  5. Services Intent.

    Digital Advertising & Marketing services are intended to provide Customer with possible increased positioning in selected search engines. Digital Advertising & Marketing services may include, but are not limited to:

    1. 5.1 Keyword Selection.

      Company and Customer will agree together on which keywords will be used, in the project Kick-Off meeting. The number of Keywords that will be optimized per this agreement will be the amount noted on the packaged the Customer purchased.

    2. 5.2 Web Page Edits and Custom Programming.

      Company will edit Customer’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 employ proprietary positioning techniques, coding, and other resources, as it deems necessary to improve Customer’s positioning. Company reserves the right to create specially coded Web Pages to prevent competitors from copying code or any resources employed by Company.

    3. 5.3 Services.

      Company may create custom reports for traffic and positioning of Customer’s Web Site, Web Pages, and any additional Web Sites or custom Web Pages created by Company under this Agreement. Company may provide detailed reports as and shall endeavor to provide the reports to Customer in a timely manner. Customer 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 the purchased term.

      Company may develop and maintain regular monitoring and reporting on search engine placement and Digital Advertising & Marketing performance. Reports may be provided to Customer on a monthly basis.

      Customer acknowledges the following with respect to services:

      1. 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. Customer’s Web Site or content may be excluded or banned from any Third-party resource at any time. Customer agrees not to hold Company responsible for any liability or actions taken by Third-party resources under this Agreement.

      2. Customer acknowledges that the nature of many of the resources Company may employ under this Agreement are competitive in nature. Company does not guarantee #1 positions, consistent positioning, “top 10 positions” or guaranteed placement for any particular keyword, phrase or search term. Customer acknowledges that Company’s past performance is not indicative of any future results Customer may experience.

      3. Customer acknowledges that Digital Advertising & Marketing 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. Customer 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.

      4. Customer 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 pay inclusion programs are being used.

      5. Company will endeavor to make every effort to keep Customer informed of any changes that Company is made aware of that impact any of the Digital Advertising & Marketing Services and the execution thereof under this Agreement. Customer 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 Digital Advertising & Marketing services.

      6. Customer acknowledges that some of the Third-party resources only offer paid inclusion programs that require a fee or continued maintenance or performance fees. Customer 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.

      7. 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 Customer or presently employed by Customer that is considered by Company to be detrimental to Digital Advertising & Marketing and the execution of Company’s services under this Agreement.

      8. Customer acknowledges that any digital advertising management service fees charged by the company do not include a pay per click advertising budget. The customer also acknowledges that they will be required to set a monthly digital advertising budget per campaign platform, in addition to the monthly digital advertising management service fee.

  6. Compensation.

    For all of Company’s services under this Agreement, Customer shall compensate Company, in cash, credit card or bank check, pursuant to the packaged selected and purchased from the On The Mark Digital website. In the event Customer fails to make any of the payments according to the payment plan chosen during purchase the 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 Customer by Company or not.

    3. Bring legal action.

    Customer agrees to provide compensation/payments to the Company for the entire length of this agreement. Company shall provide to Customer a grace period of 5 days beyond the specified payment dates, to submit compensation/payments. Company will consider any compensation/payments past the 5 day grace period to be late, and subject to a late payment fee of $20.00. Late payment fees will be added to the current monthly due amount.

  7. Confidentiality.

    Customer and Company acknowledge and agree that the Specifications and all other documents and information related to the development of Digital Advertising & Marketing (the “Confidential Information”) will constitute valuable trade secrets of Company. Customer shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without Company’s prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.

  8. Limited Warranty and Limitation on Damages.

    Customer acknowledges that Company does not warrant that Digital Advertising & Marketing will work on all platforms. Customer acknowledges that Company will not be responsible for the results, productivity or any other measurable metric not specified in this agreement. Customer waives any claim for damages, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to Company within the last thirty days of any signed agreement or contract. 

  9. Equipment.

    Customer 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 Customer and Company agree are reasonably necessary for such purpose. Customer agrees to make available any access to services, hosting, FTP or other resources deemed necessary by Company to fulfill its obligations under this Agreement.

  10. General Provisions.
    1. 10.1 Entire Agreement.

      This Agreement contains the entire Agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by both parties hereto.

    2. 10.2 Governing Law.

      This Agreement shall be governed by and construed in accordance with the laws of the State of California. Exclusive jurisdiction and venue shall be in the Sonoma County, California Superior Court.

    3. 10.3 Binding Effect.

      This Agreement shall be binding upon and ensure to the benefit of Customer and Company and their respective successors and assigns, provided that Company may not assign any of their obligations under this Agreement without Customer’s prior written consent.

    4. 10.4 Waiver.

      The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.

    5. 10.5 Good Faith.

      Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.

    6. 10.6 No Right to Assign.

      The Customer has no right to assign, sell, modify or otherwise alter this Agreement, except upon the express written advance approval of Company, which consent can be withheld for any reason.

    7. 10.7 Right to Remove Resources.

      In the event, Customer fails to make any of the payments set forth in the payment plan purchased Company has the right to remove any Digital Advertising & Marketing under Company control until payment is paid in full, plus accrued late charges of 1 ½ % per month.

    8. 10.8 Indemnification.

      Customer warrants that everything it provides Company to employ in Digital Advertising & Marketing is legally owned or licensed to Customer. Customer agrees to indemnify and hold Company harmless from any and all claims brought by any third-party relating to any aspect of Digital Advertising & Marketing, including, but without limitation, any and all demands, liabilities, losses, costs and claims including attorney’s fees arising out of injury caused by Customer’s products/services, material supplied by Customer, copyright infringement, and defective products sold via Digital Advertising & Marketing. Customer agrees to indemnify Company from responsibility for problems/disruptions caused by third-party services that Customer may use such as merchant accounts, shopping carts, shipping, hosting services, real time credit card processing and other services that relate to the ownership and operation of Digital Advertising & Marketing or multimedia project.

    9. 10.9 Use of Material for Promotional Purposes.

      Customer grants Company the right to use its work in producing Digital Advertising & Marketing for promotional purposes and/or to cross-link it with other advertising developed by Company. Customer grants Company the right to list, reference or otherwise identify Customer as a client of Company in Company’s advertising and marketing.

    10. 10.10 No Responsibility for Loss.

      The Client agrees the 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 for Digital Advertising & Marketing. Furthermore, the Client agrees the Company is not responsible for any down time, lost files, improper links or any other loss that may occur in the operation of Digital Advertising & Marketing under this Agreement.

    11. 10.11 Right to Make Derivative Works.

      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 Digital Advertising & Marketing.

    12. 10.12 Attorney’s Fees.

      In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorney’s fees and costs, including expert witness fees.

    13. 10.13 Identification of Company.

      Customer agrees that Company identification may be annotated, and remain, within the code or on the Web Site as the authors. Customer also agrees to put Company’s copyright notices on Digital Advertising & Marketing and the relevant content therein.

    14. 10.14 Transfer of Rights.

      In the event Company is unable to continue maintenance of Digital Advertising & Marketing services, non-exclusive rights to Digital Advertising & Marketing will be granted to Customer. Transfer of Rights does not apply to non-transferable third-party licenses and proprietary Material owned by the Developers.

    15. 10.15 Domain Name.

      Any domain name registered on Customer’s behalf will be made in Customer’s name for both the billing and administrative contacts. The technical contact is generally required to be the hosting ISP or Domain Registrar. Company will not register domain names in Company name. Customer is responsible for renewing Customer’s domain name.

Signature of All Parties Involved.

Each party represents and warrants that, on the date first written above, they are authorized to enter into this Agreement in entirety (including the monthly subscription costs in Exhibit A) and duly bind their respective principals by their signature below:

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On The Mark Digital https://onthemarkdigital.com
Signature Certificate
Document name: Digital Marketing Services Agreement
Unique Document ID: db2af8a7ff3b544c3e70bb481782c79b24411a41
Timestamp Audit
April 24, 2018 9:08 am PDTDigital Marketing Services Agreement Uploaded by Mark Gonzales - tracy@onthemarkdigital.com IP 75.33.194.8