THIS MASTER SERVICE AGREEMENT ("Agreement"), relates to all marketing services rendered by Northcutt Consulting Group, LLC, an Illinois Limited Liability Company, having a principal place of business at 5106 N. Lincoln Ave. #2S, Chicago, IL 60625 (hereinafter "Consultant"), to you (hereinafter "Client"; collectively, the "Parties").
Section 1. TERM AND TERMINATION
1.1. Term. The term of this Agreement shall commence on the date set forth above as a one-time service.
1.2. Termination. This Agreement may be terminated by either party after the initial one (1) month period and upon fourteen (14) days prior written notice. Consultant shall be paid for all work performed by the consultant on or before the date of termination.
1.3. Either party may terminate this Agreement forthwith without notice, in the event (i) other party ceases or threatens to cease its business, or (ii) Client fails to pay to Consultant all fees and other amounts due pursuant to this Agreement when such amount becomes due and payable; or (iii) other party breaches this Agreement and fails to cure such breach within thirty (30) days of the date of a notice of such breach by the non-defaulting party.
1.4. Upon termination of this Agreement for any reason whatsoever, Client shall immediately pay to Consultant all unpaid fees and amounts, irrespective to the fact that such amount has been invoiced or not.
1.5. Survival. In the event of any termination of this Agreement, Sections 4, 5, and 6 hereof shall survive and continue in effect.
Section 2. INDEPENDENT CONTRACTOR
2.1. Intention of Parties. It is the intention of the Parties that Consultant be an independent contractor and not an employee, agent, or partner of Client. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Client and either Consultant or any employee or agent of Consultant.
2.2. Nonexclusive. Consultant shall retain the right to perform work for others during the terms of this Agreement. Client shall retain the right to cause work of the same or a different kind to be performed by its own personnel or other contractors during the term of this Agreement.
Section 3. CONSULTING SERVICES
3.1. Services. Consultant agrees to provide, and Client agrees to accept, the consulting services described in Exhibit A hereto.
3.2. Conduct of Services. All work shall be performed in a workmanlike and professional manner.
3.3. Method of Performing Services. Consultant shall have the right to determine the method, details, and means of performing the work to be performed for Client. Client shall, however, be entitled to exercise general power of supervision and control over the results of work performed by Consultant to assure satisfactory performance, including the right to inspect, the right to make suggestions or recommendations as to the details of the work, and the right to propose modifications to the work.
Section 4. COMPENSATION
4.1. Fees. Client shall pay Consultant a pre-agreed sum prior to the first day of each month for Consultant to perform the services requested by Client. Consultant will not perform any consulting services for Client unless Consultant is paid in advance for the subsequent month.
Section 5. CONFIDENTIALITY
5.1 CONFIDENTIALITY. The parties agree to 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. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to 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. Each party's proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of the intentional 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. Notwithstanding termination or expiration of this Agreement, Consultant and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
Section 6. LIMITATIONS
6.1 Limited Liability. IN NO EVENT SHALL CONSULTANT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING 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. THERE SHALL BE NO REFUNDS. CONSULTANT MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
6.2 Total Liability. Both Parties agree that the other party's liability hereunder for damages, regardless of the form of action, shall not exceed the total amount paid by Client to Consultant for one (1) month of service performed by Consultant.
6.3 Force Majeure. Consultant shall not be liable to Client for any failure or delay caused by events beyond Consultant's control, including, without limitation, Client's failure to furnish necessary information, sabotage, failures or delays in transportation or communication, failures or substitutions of equipment, labor disputes, accidents, shortages of labor, materials, or equipment, or technical failures.
Section 7. CUSTOMER ACKNOWLEDGEMENTS, RESPONSIBILITIES & REPRESENTATIONS
7.1 Customer Acknowledgements. Customer understands, acknowledges and agrees that: (1) Consultant has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future. Customer's web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity (e.g., if Google rejects the web site); (2) Some search engines and directories may take as long as two (2) to four (4) months, and in some cases longer, after submission to list Customer's web site(s); (3) Occasionally, search engines and directories will stop accepting submissions for an indefinite period of time; (4) Consultant is not responsible for changes made to Customer's web site(s) by other parties that adversely affect the search engine or directory rankings of Customer's web site(s); and (5) Consultant, at its sole discretion, may use subcontractors to assist in Customer achieving its goals of increasing its Internet presence.
7.2 Customer Responsibilities. For the purposes of providing these services, Customer agrees: (1) To provide Consultant with FTP access to its web sites for uploading new pages, and making changes for the purpose of SEO Services including authorization to use Customer's IP account and access to Customer's Blogs and Twitter accounts; (2) To authorize Consultant use of all Customer's logos, trademarks, Web site images, etc., for use in creating informational pages and any other uses as deemed necessary by Consultant for search engine optimization; and (3) That if Customer's web site(s) is light in textual content, Customer will provide additional content in electronic format for the purpose of creating additional web pages; and (4) To provide all content for the web site.
7.3 Customer Representations. Customer makes the following representations and warranties for the benefit of Consultant: (1) Customer represents to Consultant and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Consultant are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Consultant and its subcontractors; (2) Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Consultant for inclusion on the website above are owned by Customer, or that Customer has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Consultant and its subcontractors from any liability or suit arising from the use of such elements; and (3) From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Consultant and its subcontractors.
Section 8. GENERAL PROVISIONS
8.1 Notices. Any notices to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the Parties at the addresses appearing in the introductory paragraph of this Agreement, but each party may change such address by written notice in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated as of two business days after mailing.
8.2 Entire Agreement of the Parties. This Agreement supersedes any and all agreements, either oral or written, between the Parties hereto with respect to the rendering of services by Consultant for Client and contains all the covenants and agreements between the Parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. Any modification of this Agreement will be effective only if it is in writing signed by a duly authorized representative of each party.
8.3 Severability. If any provision in this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.
8.4 Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Illinois. The parties agree that no action by one party against the other may be brought in any court, in any jurisdiction, except according to the terms of this paragraph. The Parties shall first use mediation to resolve and dispose of any disputes, differences or claims arising out of this Agreement, or the interpretation or performance thereof. If a resolution cannot be achieved through mediation between the Parties within thirty (30) Calendar Days, either Party may serve upon the other a written notice that the mediation has reached an impasse and the dispute shall be resolved in accordance with Clause 8.7 below.
8.5 Binding Arbitration. All disputes arising out of or relating to this Agreement or its subject matter--including disputes as to validity, performance, breach, or termination--which cannot be settled by mediation, shall be resolved exclusively by binding arbitration between the parties before one arbitrator selected, according to and applying the rules of the American Arbitration Association. The parties agree to venue and exclusive jurisdiction in McLean Count, Illinois. No termination or expiration of this Agreement shall affect the right to arbitrate disputes. The award rendered by the arbitrator shall be final and binding upon the Parties. The award shall state the reasons upon which it is based. Judgment on the award may be entered in any court of competent jurisdiction. The referral of a dispute, difference or claim to arbitration shall not relieve either party from their obligations under this Agreement.
8.6 Successors. This Agreement shall inure to the benefit of, and be binding upon, Consultant and Client, their successors and assigns.
8.7 Indemnification. Client shall defend, indemnify and hold harmless Consultant from and against all claims, liability, losses, damages and expenses (including attorneys' fees and court costs) arising from or in connection with the use or application of Consultant's work by Client or any direct or indirect purchaser or licensee of Client.
8.8 Integration. This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes 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. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
8.9 Duly Authorized Representative. Each Party warrants that their representative whose signature appears below is duly authorized by all necessary and appropriate corporate actions to execute this Agreement. Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.