I. CONTRACT TERM AND TERMINATION – 1) Enlightened Media’s (Hereafter referred to as EM) services shall begin only after delivered Agreement has been signed by Client, and Client has completed and signed EM’s Automatic Credit Card Billing Authorization Form, and EM has successfully received and processed Client’s first payment as set forth herein above; 2) This Agreement and the obligations of the Parties imposed herein shall continue unless and until terminated in accordance with this Section; 3) The initial term of this Agreement is month to month from the “start date” listed hereinabove; 4) At its sole and complete discretion, and with or without cause, EM shall have the right to terminate this Agreement at any time upon written notice to do so delivered to Client or its agent no fewer than thirty (30) days prior to the effective date of such termination; 4)For just cause, either Party may terminate this Agreement at any time such cause becomes known to the Party desiring termination, upon thirty (30) days written notice to the other Party; 5) Without just cause, Client may terminate this agreement upon written notice to do so delivered to EM no fewer than thirty (30) days prior to the effective date of such termination. 6) 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.
II. PAYMENT – 1) Unless otherwise agreed to in writing by EM, services by EM pursuant to this Agreement will not begin until initial payment due from Client is received and processed by EM. 2) Unless otherwise authorized in advance by EM, all payments by Client for EM services shall be made by a credit or debit card account authorized for use by Client (Visa, MasterCard, American Express, and Discover only); 3) Upon execution of this Agreement, Client shall provide EM with a valid, authorized credit card account, complete and execute an Automatic Credit Card Billing Authorization Form, and execute an authorization to perform a credit check. By executing this Automatic Credit Card Billing Authorization Form, Client agrees to pay the credit card issuer all amounts charged to said credit card; 4) Monthly fees for EM services are due on the first of each month. Payment of all sums due EM must be made in U.S. Dollars; 5) 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 shall constitute a waiver to object or dispute to do so thereafter; 6) EM retains the right to alter the billing date and/or method at any time subject to providing Client with 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; 5) 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 said credit account is ever changed, terminated, cancelled or for any reason or rendered unusable at any time; 6) If Client’s credit card is declined for any reason when used by EM for payment of its 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 as a result of 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; 7) 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. 8) 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, regardless of whether notice of termination or cause therefor as provided in Section I hereinabove.
III. SEVERABILITY. 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
IV. 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 obligations concerning confidentiality.
V. NON-WAIVABILITY. Waiver by either party or any default by the other party shall not be deemed a continuing waiver of such default or a waiver of any other default.
VI. PROPER AUTHORITY. In signing this Agreement Client personally represents and warrants that he or she is authorized to execute this Agreement on behalf of his or her corporation.
VII. BENEFIT AND APPLICABILITY. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. VIII. GOVERNING LAW. 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 and regardless of the jurisdiction in which litigation relating to the subject matter of this Agreement shall be initiated or continued.
IX. JURISDICTION AND VENUE. The venue for any such action shall be any court of competent jurisdiction of the State of Louisiana located in Orleans Parish.
X. ARBITRATION. 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 for 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.
XI. 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, then and in that event, the party prevailing shall be entitled to reasonable attorney’s fees and court costs.
XII. 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.
XIII. 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.
XIV. INDEMNIFICATION. 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 attorney’s fees, arising out of or in any way related to this Agreement except as caused in whole or part by the acts or omissions of EM or any other person or entity for whose acts or omissions EM may be responsible to any degree;
XV. WAIVER OF WARRANTIES AND LIMIT OF LIABILITIES. 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.
XVI. TRADE SECRETS. Enlightened Media will not disclose any information they deem as proprietary or trade secret. Upon termination, as well as throughout the duration of this agreement, Enlightened Media maintains sole access of 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 the agency which are deemed as proprietary. Work and daily management of campaigns completed by Enlightened Media within any Google AdWords, Microsoft Ad Center or any other Google, Facebook or Bing advertising accounts are considered trade secrets. Enlightened Media does not integrate their data or accounts with any 3rd party data sources such as 3rd party Google Analytics accounts which could be viewed as competitive and disclose of any proprietary or trade secret information regarding EM marketing strategies.
XVII. OTHER. 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.