Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each party agrees to indemnify and hold harmless the other Party against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party due to:
(a) the Indemnifying Party’s breach of this Agreement;
(b) the Indemnifying Party’s violation of law; and/or
(c) the Indemnifying Party’s misuse of data related to this Agreement.
The Indemnified Party shall promptly notify the Indemnifying Party of any such claim or legal proceeding and shall tender to the Indemnifying Party control of the defense and settlement, including without limitation, selection of counsel and direction of legal strategy. The Indemnified Party shall cooperate with the Indemnifying Party in the handling of such claim or legal proceeding. This indemnity shall NOT cover any a claim in which there is failure to give the indemnifying party prompt notice. This indemnification will survive the termination of this agreement.
2. Nondisclosure of Confidential Information.
Confidential information refers to any data or information relating to the CLIENT, whether business or personal, which would reasonably be considered to be private or proprietary to the CLIENT and that which is not generally known and where the release of the confidential information could reasonably expected to cause harm to the CLIENT;
The SERVICE PROVIDER agrees that it will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the SERIVICE PROVIDER has obtained, except as authorized by the CLIENT or as required by the law. The obligation of confidentiality will apply during the Term and will survive indefinitely upon termination of contract;
All written and oral information and material disclosed or provided by the CLIENT to the SERVICE PROVIDER under this agreement is Confidential Information regardless of whether it was provided by the CLIENT to the SERVICE PROVIDER under this agreement is confidential information regardless whether it was provided before or after the date of this agreement:
(a) CONFIDENTIAL INFORMATION shall not include any information which:
i. is or has become generally known to the public without fault or cause of the Receiving Party ;
ii. is already known to the Receiving Party prior to Receiving Party's receipt of information from the Disclosing Party as shown by prior written records; or
iii. Becomes known to the Receiving Party by disclosure from a third party that has a lawful right to disclose the information.
(b) Without limiting the generality of the foregoing, CONFIDENTIAL INFORMATION shall include trade secrets (as defined under the version of the Uniform Trade Secrets Act adopted and in effect in the State of California from time-to-time during the term of this Agreement) and all other discoveries, developments, designs, improvements, inventions, recipes, formulas, software programs, processes, techniques, know-how, negative know-how, data, research, techniques, technical data, customer and supplier lists, and any modifications or enhancements of any of the foregoing, and program, pricing, marketing, sales, business contract, or other financial or business information.
(c) SERVICE PROVIDER acknowledges the representations of CLIENT that CONFIDENTIAL INFORMATION is proprietary and valuable to CLIENT, and that any disclosure or unauthorized use thereof may cause irreparable harm and loss to CLIENT.
(d) Receiving Party agrees to treat CONFIDENTIAL INFORMATION on a confidential and restricted basis and to undertake the following additional obligation with respect thereto:
i. to use CONFIDENTIAL INFORMATION for the sole purpose of performing SERVICE PROVIDER’s services to CLIENT under this Agreement;
ii. not to duplicate, in whole or in part, any CONFIDENTIAL INFORMATION;
iii. not to disclose CONFIDENTIAL INFORMATION to any entity, individual, corporation, partnership, sole proprietorship, customer or CLIENT without the prior express written consent of Disclosing Party; and
iv. to return all CONFIDENTIAL INFORMATION to Disclosing Party upon request therefore and to destroy any additional notes or records made from such CONFIDENTIAL INFORMATION.
(e) The standard of care to be utilized by Receiving Party in the performance of Receiving Party’s obligations set forth herein shall be, at a minimum, the standard of care utilized by the Receiving Party in treating the Receiving Party’s own information which Receiving Party does not wish disclosed to any third-party, but in no event shall such standard of care be below the minimum established acceptable standard of care in the each party’s applicable line of business.
(f) The CONFIDENTIAL INFORMATION restrictions and obligations set forth in this Agreement shall survive any expiration, termination or cancellation of this Agreement and shall continue to bind the Independent Contractor, and Independent Contractor’s heirs, successors and assigns in perpetuity, UNLESS the confidential information becomes public information.
3. Noninterference with Business.
(a) The SERVICE PROVIDER agrees that during the term of this Agreement the SERVICE PROVIDER shall:
i. promptly disclose to the CLIENT’s appropriate persons, corporate officers or directors, all business opportunities that are:
- (i) presented to SERVICE PROVIDER in SERVICE PROVIDER’s capacity as an independent contractor of the CLIENT; and
- (ii) of a similar nature to the type of business the CLIENT currently engages in or has expressed an interest in engaging in the future; and
ii. Not usurp or take advantage of any such business opportunity without first offering such opportunity to the CLIENT and receiving written notice from an authorized representative of the CLIENT that the CLIENT is waiving its rights with respect thereto.
(b) Following the cessation of SERVICE PROVIDER’s relationship with CLIENT for any reason, whether with our without cause, SERVICE PROVIDER agrees that SERVICE PROVIDER shall not:
i. engage in unfair competition with the CLIENT;
ii. aid others in any unfair competition with the CLIENT;
iii. in any way breach the confidence that the CLIENT placed in SERVICE PROVIDER during SERVICE PROVIDER’s relationship with CLIENT;
iv. misappropriate any CONFIDENTIAL INFORMATION; or
v. breach any of SERVICE PROVIDER’s duties or obligations to the CLIENT or any third party under this Agreement or any other agreement to which SERVICE PROVIDER is a party that relates to the subject matter hereof.
(c) That the non-interference with business clause shall apply within any State of the United States of America and any other jurisdiction in which any member of the SERVICE PROVIDER engages (or has committed plans to engage) in business during the Non-Compete Period, which shall be within the term of the contract and 18 months after its termination.
(d) CLIENT Agrees and explicitly understands the following:
i. SERVICE PROVIDER while maintains its servers, there are times where servers and redundancies fail. The SERVICE PROVIDER shall not be held liable for data loss of any non-deliberate acts whatsoever, including hardware failures, and acts of God, hacked serves or web sites, or malicious serve attacks resulting in viruses.
ii. SERVICE PROVIDER may at times cause errors, upload clean content not authorized by CLIENT, or the sites and services may result in errors at any time, and the SERVICE PROVIDER promises to restore and fix any error to the best of its ability, however SERVICE PROVIDER shall not be held liable for any losses due to errors what so ever.
iii. SERVICE PROVIDER will not allow access to the web sites server, ftp, or cpanel for any reason while hosted with Custom Virtual Solutions, strictly for the purposes of protecting the site from malicious hacks, and virtual attacks from CLIENTS computers and terminals.
4. Fair Usage Policy (FUP)
SERVICE PROVIDER calculates its Fair usage policy from the average organic usage of our services from over 10,000 active CLIENTs, and creating an unlimited service that is considered to be the average high volume usage of an average CLIENT’s business. We offer reasonable unlimited services and allow it to exceed the averages where reasonable. If we reasonably consider your use of the Fair Use Services is unreasonable, we may, at our sole discretion, upon notice:
(a) suspend or limit the Service (or any feature of it) in accordance with Our Agreement with You; and/or
i. Involve a non-ordinary use;
ii. Cause significant network congestion, disruption or otherwise adversely affect the network, a supplier’s network; or
iii. Adversely affect another person’s use of or access to the Fair Use Services, the AAPT network or a supplier’s network.
iv. Content that to be fraudulent;
(b) Terminate the Service in accordance with Our Agreement with You, and refund on the current active billing month cycle for any of the above instances.
5. Accessibility Policy for ADA Compliance.
(a) CLIENT agrees that SERVICE PROVIDER makes every effort to maintain a website that is both accessible to all visitors and compliant with the Web Content Accessibility Guidelines (WCAG) put forth by the World Wide Web Consortium (W3C).
(b) CLIENT agrees that accessibility and usability are not always possible in every area of the website, or for those visitors using assistive technologies and devices. SERVICE PROVIDER conducts accessibility scans of the CLIENTS web sites and corrects issues uncovered by these machine audits. This service is being provided "as is", without any express or implied warranty. These machine-generated evaluations of website accessibility are not conclusive. SERVICE PROVIDER uses (WebAIM/WAVE) for compliance Testing and makes no representation or warranty of any kind concerning the reliability, quality, or merchantability of this service or its fitness for any particular purpose. Additionally, (WebAIM/WAVE) does not guarantee that use of this service will ensure the accessibility of your web content or that your web content will comply with any specific web accessibility standard or law.
6. SEO optimization Policy and Agreement.
(a) CLIENT Agrees SEO service is not a guaranteed ranking service, but optimization will be performed to the best of the SERVICE PROVIDER’s research, skill and ability; CLIENT website’s ranking with a Search Terms will rely on both the relevancy of that term on the pages, the popularity of that term on other websites and the relevance of the back-links to your website to the search term.
(b) CLIENT Agrees Google’s results are displayed on other search engines, the work that is carried out by SERVICE PROVIDER is aimed at increasing visibility and boosting ranking on Google, MSN and Yahoo. It is not possible to give a 100% guarantee for any specific result on any search engine, nor can SERVICE PROVIDER quantify the level of increased traffic or sales, as a result of the SEO campaign.
(c) CLIENT agrees that no guarantees will be given as to client’s website ranking as the search engines update algorithms on a regular basis and new sites and competitor sites may be being optimized and submitted congruently.
(d) CLIENT agrees that it is possible for the CLIENT’s website rankings to decrease in rank at times, if this were to happen, no liability will be on SERVICE PROVIDER and no refunds or discounts given. CLIENT agrees and understands this is part of the SEO development process, and ranking in general to restore overtime as a result of proper indexing and optimization SERVICE PROVIDER performs on CLIENT website. Deliverables are designed to improve CLIENT website rankings on the keywords selected &/or close variations of these phrases. In some cases it may not be possible to improve rankings on certain keywords or phrases and in this case SERVICE PROVIDER will integrate the closest relevant keyword phrases to optimize. CLIENT understands the SEO process is extremely complex, and achieving stable high rankings can take up to 2-12 months initially.
(e) CLIENT agrees to grant authority to submit the website pages to search engines and directories, make changes to the website for SEO purposes at any time, and submit content to external websites for the purpose of SEO Marketing. CLIENT will be notified by SERVICE PROVIDER at all times new content is posted online.
(f) CLIENT explicitly agrees to now allow any company, person, or entity to access the website for any reason unless SERVICE PROVIDER has been notified of to the nature of the access and alterations to be made. CLIENT agrees the purpose of this policy is to protect the integrity of the SEO and Ranking of the website.
7. Termination of Service.
The CLIENT must notify the SERVICE PROVIDER, 30 days in advance any cut back on Services or termination of service herein. There shall be no prorating on termination of services within a contract month. NOTICE should be done during the beginning of the month. If the CLIENT notifies the SERVICE PROVIDER after the beginning of the month, the Current service month shall be paid in full and shall be used and applied on the Next 30 days following the Current month.
Shall the notification from CLIENT come at the beginning of the month, the Monthly Service Payment will be applied to the 30 days following the date of payment and contract for the Premium Business Plan will be terminated ONLY after the 30 day period has lapsed.
There shall be an award of reasonable attorneys' fees and costs to the prevailing Party in the event that the parties to this Agreement become adverse parties in any legal proceeding (i) for the enforcement of any term or provision of this Agreement,(ii) seeking a declaration as to any term or provision of this Agreement, or (iii) in which any term or provision of this Agreement is asserted by way of defense.
This Agreement is made and entered into in the State of Nevada and shall, in all respects, be interpreted, enforced and governed by and under the laws of the State of Nevada. Venue for any legal proceedings arising pursuant to this Agreement shall be in Clark County, Nevada.
This Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and assigns.
The parties agree to do all things necessary and to execute all further documents reasonably necessary and appropriate to carry-out and effectuate the terms and purposes of this Agreement.
Paragraph headings are for reference only and shall not affect the interpretation of any paragraph hereof.
This Agreement is intended to be the entire agreement between the parties and there are no collateral agreements or representations, oral or written, relating to the subject matter hereof. This Agreement may be amended or modified only by a writing signed by all parties to this Agreement.
Time is of the essence in the performance by the parties of their obligations hereunder.
This Agreement can be executed and delivered in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall together shall constitute one and the same instrument. Any counterpart delivered by facsimile, .pdf or other electronic means shall have the same import and effect as original counterparts and shall be valid, enforceable and binding for the purposes of this Agreement. The parties intend to confirm any electronically transmitted signatures by exchanging ink-signed originals, but the failure to do so shall not affect this Agreement’s validity in any way.