Terms and Conditions
1. TERM AND TERMINATION –
- EM’s services shall begin only after Agreement has been signed by Client, Client has completed and signed EM’s Automatic Credit Card Billing Authorization Form, and EM has successfully received and processed Client’s first payment in the amount set forth above;
- This Agreement and the obligations of the Parties imposed herein shall continue unless and until terminated in accordance with this Section;
- The initial term of this Agreement is month to month beginning on the Effective Date;
- At its sole and complete discretion, and with or without cause, either party shall have the right to terminate this Agreement at any time upon written notice delivered to the non-terminating Party no fewer than thirty (30) days prior to the effective date of such termination;
- The initial term of this Agreement shall automatically renew with all provisions herein remaining the same unless a written agreement to the contrary is executed by the Parties no fewer than thirty (30) days prior to the expiration of said initial term.
2. PAYMENT –
- Unless otherwise agreed to in writing by the Parties, services by EM pursuant to this Agreement will not begin until initial payment due from Client is received and processed by EM.
- Unless otherwise authorized in advance by EM, all payments by Client for EM’s services shall be made by the credit or debit card account authorized for use by Client’s completion of EM’s Automatic Credit Card Billing Authorization Form (Visa, MasterCard, American Express, and Discover only) set forth below;
- Upon execution of this Agreement, Client shall provide EM with a valid, authorized credit card account, complete and execute the Automatic Credit Card Billing Authorization Form below, and execute an authorization to perform a credit check. By executing the Automatic Credit Card Billing Authorization Form, Client agrees to pay the credit card issuer all amounts charged to said credit card;
- Monthly fees for EM’s services are due on the first of each month. Payment of all sums due to EM must be made in U.S. Dollars;
- Invoices or statements of charges presented by EM to Client for payment of services rendered shall be deemed to have been accepted by Client unless Client submits written notice of specific objection to EM within fifteen (15) days of receipt of any such invoice or statement; Failure to make such objection within the time limit specified herein shall constitute a waiver of any such objection;
- EM retains the right to alter the billing date and/or method at any time subject to providing Client fifteen (15) days’ notice thereof. Should Client fail to object to such changes in writing prior to the deadline stated in the notice, Client shall be deemed to have accepted said changes;
- It is the sole responsibility of the Client to ensure that EM is at all times in possession of a valid credit card account, properly authorized to be used for payment of services contemplated herein and to promptly advise EM if any information on Client’s credit account is ever changed, terminated, cancelled for any reason or rendered unusable at any time;
- If Client’s credit card is declined for any reason when used by EM for payment for services in accordance with this Agreement, EM shall notify Client within thirty (30) business days from failed processing. Thereafter, within thirty (30) business days of Client’s receipt of notice from EM of the declined transaction, Client shall provide EM with information from a valid credit card account, which EM can process for immediate payment of any and all amounts then due. If Client fails to provide a valid credit card to EM within this time frame following a declined payment, or if more than one payment for Client is declined in any twelve (12) month period, Client will be deemed in default of this Agreement, and EM shall have the discretion to terminate this Agreement and immediately pursue all collection efforts allowed by law to recover all amounts due under this Agreement, as well as the costs of said collection efforts. If Client’s credit card is declined, EM may also charge Client an insufficient funds fee up to the amount permitted by law;
- Payments owed by Client to EM are delinquent if not paid in full by the date due in accordance with this Agreement. Regardless of the cause for delinquency, interest on past due balances shall accrue at the rate of fifteen percent (15%) per annum commencing on the date such aforesaid delinquency begins and continuing until all such interest and principal is paid in full.
- Cost of services as shown in Section I above includes all fees. EM will take a direct management fee of the total monthly charge, in addition to other fees that may be applicable. 9) After commencement of any services by EM in accordance with this Agreement, no refund or return of any payment made by Client for payment of said services shall be made.
- If any provision, phrase or wording of this Agreement is determined to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the remainder of this Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision, phrase or wording and the right and obligations of the parties shall be construed and enforced accordingly.
4. CONTINUATION OF OBLIGATIONS.
Notwithstanding anything to the contrary contained in this Agreement, the obligations of the Parties which remain executory after termination of this Agreement shall remain in full force and effect until discharged by performance, and all rights which pertain to such obligations shall remain in force until their expiration, including but not limited to rights and obligations concerning confidentiality.
The failure of a Party to insist upon strict performance of any provision of this Agreement or to exercise any right arising out of this Agreement shall neither impair that provision or right, nor constitute a waiver of that provision or right, in whole or in part, in that instance or in any other instance.
6. TRADE SECRETS.
EM will not disclose any information it deems as proprietary or trade secret and EM does not allow any sharing of data across any entities or data sources they deem as competitive. Upon termination, as well as throughout the duration of this Agreement, EM maintains sole access to proprietary Google Client Center, Google AdWords, Microsoft Ad Center, Facebook Ad Center and any other Google, Facebook or Bing advertising accounts built or managed by EM which are deemed as proprietary. Work and daily management of campaigns completed by EM within any Google AdWords, Microsoft Ad Center or any other Google, Facebook or Bing advertising accounts are considered trade secrets. EM does not integrate its data or accounts with any 3rd party data sources such as 3rd party Google Analytics accounts which could be viewed as competitive or could disclose proprietary or trade secret information regarding EM marketing strategies. Enlightened Media uses proprietary intellectual property to set up their advertising campaigns and will thus own any advertising campaigns or accounts they setup and manage. The proprietary implementation of all above services is non-transferrable following termination of the program by either party.
7. PROPER AUTHORITY ON BEHALF OF CLIENT.
In signing this Agreement, the undersigned personally represents and warrants that he or she is authorized to execute this Agreement on behalf of his or her corporation.
8. GOVERNING LAW, JURISDICTION AND VENUE.
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Louisiana without regard to any choice of law statute or the place of performance. The venue for any suit, action or proceeding under this Agreement shall be any court of competent jurisdiction of the State of Louisiana located in Orleans Parish.
Except for injunctive relief, any dispute arising out of or in any way related to this Agreement shall be submitted to binding arbitration in Orleans Parish, Louisiana pursuant to the commercial rules then in effect for the American Arbitration Association; and judgment upon the award rendered may be entered and enforced in any court of competent jurisdiction. If there is a dispute as to whether a claim is subject to arbitration, the arbitration panel shall decide the issue. The arbitration panel shall apply Louisiana laws to the interpretation of this Agreement, except that the Federal Arbitration Act shall govern this subparagraph. If Client desires to seek arbitration, Client must first send EM a written notice of intent to arbitrate by certified mail to the following address: 2510 Nashville Ave, New Orleans, Louisiana, 70115. The notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If Client and EM do not reach an agreement to resolve the claim within 60 days after the notice is received, Client or EM may commence an arbitration proceeding as set forth in this Agreement. Upon submission of Client’s written request for arbitration to the American Arbitration Association (AAA), Client is required to pay the applicable AAA filing fee. The AAA’s filing fee, administrative and other expenses for the arbitration will be allocated according to the rules of the AAA. Client and EM knowingly and voluntarily waive any right to a jury trial with respects to any disputes to the fullest extent allowed by law.
10. LEGAL/ATTORNEYS FEES.
In the event arbitration is instituted for any dispute, breach or default of any of the conditions of this Agreement, or suit is brought to enforce the arbitration award or for injunctive relief, the party prevailing shall be entitled to reasonable attorneys’ fees and court costs.
11. FORCE MAJEURE.
Neither Client nor EM shall be deemed to be in default of, or to have breached, any provision of this Agreement as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, acts or orders of any government or agency or official thereof, other catastrophes or any other similar occurrences beyond such Party’s reasonable control.
12. BEST EVIDENCE.
This Agreement may be executed in several counterparts, each of which will be deemed to be an original, and each of which alone and all of which together, shall constitute one and the same instrument. In making proof of this Agreement, it shall not be necessary to produce or account for a copy of any counterpart other than the counterpart signed by a party against whom this Agreement is to be enforced. This Agreement may be transmitted by email or facsimile, and it is the intent of Client and EM for the email or facsimile of any autograph printed by a receiving email or facsimile machine to be an original signature and for the email or facsimile and any complete photocopy of the Agreement to be deemed an original counterpart.
To the fullest extent permitted by law, Client shall indemnify and hold harmless EM and its members, agents, representatives and employees from and against any claims, damages, losses and expenses, including attorneys’ fees, arising out of or in any way related to this Agreement except as occasioned by the willful misconduct or gross negligence of EM.
14. WAIVER OF WARRANTIES AND LIMITATION OF LIABILITY.
The information, products and services of EM are provided and/or made available to Client on an “as is” basis and as available, without any warranty or representation of any kind, whether express or implied. EM expressly disclaims any and all warranties, express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose and non-infringement with respect to the site or the service. Neither EM nor anyone else involved in providing services under this agreement will be liable to Client or any third party for any claims or damages for mistakes, omissions, errors, defects, or any failure of performance, whether or not attributable to acts of God, communications failure, destruction, theft, or unauthorized access to EM’s records, programs, servers or services. In no event shall EM incur any liability or become liable to Client or any other person or entity for any suits, demands, losses, damages or other claims arising out of or in any way related to the performance of its services pursuant to this Agreement, in an amount greater than the total of all sums paid by the Client up to and including the date such suit, demand, loss, damage or other claim is made or incurred.
During the existence of this Agreement under the initial or any subsequent term, both Parties shall favor the other whenever faced with a situation presenting a conflict or competition of interest between one Party and a different client or potential client of the other Party, whenever doing so is feasible, in the best interests of both Parties and in furtherance of this Agreement.