1. Services. Subject to all terms and conditions set forth herein, Confidence Digital Marketing (CDM) shall provide the marketing services, campaigns, advertising and programs (collectively, the “Services”) set forth in the order form expressly made subject to the terms and executed by both parties hereto. In the event of any conflict between these Terms and the terms of the order form, the terms of the order form shall control. Descriptions of the available services and corresponding additional terms are incorporated herein by reference. Client agrees and acknowledges that the services may be provided to Client via CDM’s third-party vendors and/or partners. Client acknowledges and agrees that the services may be dependent on timely receipt by CDM of certain information, content and materials from Client.
2. Indemnification by Confidence Digital Marketing. CDM shall indemnify, defend and hold harmless Client from and against any and all costs, expenses, liabilities, losses, damages, injunctions, suits, actions, fines, penalties, levies, assessments, claims and demands of every kind or nature, including legal costs and attorneys’ fees, made by or on behalf of any third party, or governmental authority, arising out of or resulting from the inaccuracy or breach of any representation or warranty of CDM contained in this Agreement; any breach or default by CDM of any covenant, obligation or agreement of CDM contained in this Agreement; or any negligent, willful, fraudulent or dishonest act or omission of CDM or its agents or employees.
3. Indemnification by Consultant. Client shall indemnify, defend and hold harmless CDM from and against any and all costs, expenses, liabilities, losses, damages, injunctions, suits, actions, fines, penalties, levies, assessments, claims and demands of every kind or nature, including legal costs and attorneys’ fees, made by or on behalf of any third party, or governmental authority, arising out of or resulting from the inaccuracy or breach of any representation or warranty of Client contained in this Agreement; any breach or default by Client of any covenant, obligation or agreement of Client contained in this Agreement; or any negligent, willful, fraudulent or dishonest act or omission of Client or its agents or employees.
4. Limitation of Liability. Neither party shall be liable to the other for any loss of profits or any special, incidental or consequential damages even if it has knowledge of the possibility of such potential loss or damage.
5. Access. CDM may require access to, and Client agrees to provide such access or otherwise make available, any systems, hardware, services, hosting, FTP software or similarly functioning software or content management systems, or other resources deemed necessary by CDM to fulfill its obligations under this Agreement.

 

6. Payment Terms. All payments are net 30 days from the date of invoice. Client on post-pay or credit accounts who exceed a 30-day balance may be moved to a secured account requiring an upfront payment equal to one (1) month’s account management fee plus any advertising budget. In the event Client fails to make any payments in a timely manner, CDM has the right, but is not obligated to, terminate the Agreement with written notice. Such remedy is in addition to any other remedies which may be available to CDM under the Agreement or under applicable law. Late payments will be charged a late fee equal to the lesser of 1.5% or the maximum interest rate allowable by law multiplied by past due amount. In addition to the late payment penalty set forth above, in the event Client fails to make any of the payments in accordance with the Agreement, CDM may suspend the Services until payment is paid in full. In addition to any outstanding balance, Client shall be liable for all collection agency fees and reasonable attorney’s fees payable by CDM in connection with enforcing Client’s performance of its payment obligations set forth in this Agreement. Client shall be responsible for all taxes due in connection with the transactions contemplated hereunder, except for taxes based on CDM’s income.

 

7. Term of Agreement. The Agreement shall remain in effect during the term set forth in the Order Form (“Terms”). Unless terminated as provided for in Section 12, the Agreement will automatically renew for an additional term of equal length to the Term.

 

8. Usage and Ownership.

(a)  The rights and licenses granted hereunder to Client are non-transferrable. Client will not, and will not permit any third party to, use or disclose the Services, unless expressly permitted under this Agreement. Without limitation of the foregoing, Client will not reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services. CDM, its partners and/or vendors exclusively retain all right, title and interest in and to the Services, in all forms, and all copies, modifications, edits, improvements, additions, and derivative works prepared from or relating to the same, including all worldwide rights to patents, copyrights, trademarks, trade secrets or other intellectual property rights in or relating to the same. The Services shall not constitute (“work for hire”). Client is not acquiring any right, title or interest of any nature whatsoever in any Services except the right to use the Services as contemplated in this Agreement. CDM will have the exclusive rights in making any derivative works from the Services or its related work.

(b)  Client owns, or is authorized to use, any keywords, combination of keywords, Client advertising materials, artwork, links, domain names (URLs), websites, data and content provided by Client to CDM, including Client’s trademarks, service marks, names and logos and the content of any creative material created by CDM that Client approves (collectively, “Content”). Client hereby grants to CDM and its Affiliates a perpetual, non-exclusive, royalty-free, irrevocable right and license (i) to use, copy, perform, display, distribute and modify the Content in any manner or medium, now known or hereafter developed, for CDM to perform the Services, and (ii) to prepare statistical analyses which CDM and its Affiliates may use to improve their services and may combine with other similar data from other clients and disseminate and otherwise use in aggregate form.

 

9. Use of Material for Services and Promotional Purposes. Client grants CDM the right to (i) use any Content provided by Client in connection with the Services and/or (ii) cross-link (i.e. by placing a tag on Client’s website) any such Content with other advertising developed by CDM. Client grants CDM the right to list, reference or otherwise identify Clients as a client of CDM in CDM’s advertising and marketing. In connection with the provision of certain Services, Client agrees and acknowledges that CDM’s identification may be annotated, and remain within the code or on Client’s web site, identifying CDM as the author and/or service provider. Client also agrees to put CDM’s copyright notices on any reports generated in connection with the Services and the relevant content therein.

 

10. Confidentiality.
    1. References in this Section to the “disclosing party” shall mean the party which discloses its own Confidential Information (defined below) to the other party, and the “recipient party” shall mean the party receiving such Confidential Information.
    2. Confidential or proprietary information shall include any information of the disclosing party, its parent, affiliates, or subsidiaries such as, and without limitation, any development, sales, financial or accounting procedures, accounts, operations, techniques, methods, business plans, trade secrets, any and all information regarding the disclosing party’s business or how the disclosing party does business or other property belonging to the disclosing party (“Confidential Information”).
    3. The parties agree that it is the obligation of the recipient party to maintain the confidentiality of Confidential Information provided by the disclosing party in connection with this Agreement. The parties shall treat as strictly confidential, and shall not use, disclose or permit to be used or disclosed at any time; except as specifically permitted in writing by the disclosing party, Confidential Information of the disclosing party or that of its parent, affiliates, or subsidiaries, whether the recipient party has such Confidential Information in its memory or it is embodied in writing, electronic or other physical form.    The recipient party shall promptly advise the disclosing party in writing of any unauthorized use or disclosure of Confidential Information.  Each party agrees to maintain and cause its employees, agents, contractors, subsidiaries and subcontractors to maintain the terms and conditions of this Agreement as strictly confidential, and not to disclose same to any third party, except as expressly permitted in writing by the disclosing party.  Each party agrees that its officers, directors, employees, agents, contractors, subsidiaries and subcontractors shall abide by the terms of this paragraph and that the recipient party shall be liable for any unauthorized use or disclosure of Confidential Information by any such person.
    4. Each party shall limit the dissemination of the Confidential Information within its own organization, including its parent, affiliate, subsidiary or successor in interest, or within any subcontractors, to such individuals whose duties justify the need to know the Confidential Information.
    5. Confidential Information shall not include information that: (i) is authorized by the disclosing party in writing to be disclosed; (ii) is or becomes publicly available through no fault of recipient party or any of the recipient party’s directors, officers, employees, agents, contractors, subsidiaries or subcontractors; or (iii) is independently developed by the recipient party without any use or knowledge of the Confidential Information.
    6. If any Confidential Information is required to be disclosed by law, the recipient party shall promptly notify the disclosing party prior to disclosing such Confidential Information unless prohibited by the terms of such legal requirement.
    7. Upon written request following the termination of this Agreement, the recipient party shall promptly return to the disclosing party all Confidential Information, including all materials, data, forms, and all other materials and information provided by the disclosing party. That portion of the Confidential Information which is copied or stored in electronic form will be promptly deleted or destroyed upon the disclosing party’s request, such destruction to be confirmed in writing to the disclosing party.
    8. A recipient party recognizes that the disclosing party’s Confidential Information is of a special, unique, extraordinary and intellectual character, which gives it peculiar value, the loss of which may not be reasonably or adequately compensated in damages in any action at law and that a breach by the recipient party of this Agreement may cause the disclosing party irreparable injury and damage. A recipient party agrees that the disclosing party shall be entitled to the remedies of injunction, specific performance and other equitable relief to prevent a breach of this Agreement by the recipient party without the necessity of proving damages and that the disclosing party shall not be required to post bond or any other form of guarantee as a condition of such relief.  This provision shall not, however, be construed as a waiver of any rights which the disclosing party may have for damages or otherwise, nor shall it limit in any way any other remedies which may result from the breach of this Agreement.
11. Representations and Warranties. Each party represents and warrants to the other that in performing its obligations under this Agreement it shall comply with all applicable federal, state and local laws and regulations, and that it is free of any contractual or legal obligations that would prevent it from entering into this Agreement.
12. Force Majeure. Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting directly or indirectly from acts of God, or any causes beyond the reasonable control of such party.
13. Notices. All notices given under this Agreement shall be in writing and delivered or transmitted by U.S. mail, return receipt request, overnight delivery service or hand delivery to the address set forth below or such other address as a party may from time to time specify in writing to the other party, and shall be deemed effective upon receipt or refusal of receipt by the recipient.  The addresses to which notice are initially to be sent are as follows:
14. Miscellaneous. Section titles are for convenience only and will not affect the meaning of this Agreement. This Agreement will be governed by and construed in accordance with the laws of the State of Nevada, without regard to or application of any conflict of law rules or principles. The Parties agree to the exclusive jurisdiction of federal and state courts located in Clark County, Nevada and waive all claims that such jurisdiction is inconvenient, lacks jurisdiction or other claims which seek to change the agreed upon venue. 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. This Agreement constitutes the entire agreement between the Parties relating to the subject matter herein and supersedes all prior oral or written agreements, understandings, and representations relating thereto. No change, modification or amendment to this Agreement will be effective or binding unless signed by Client and a duly authorized officer of CDM. CDM shall be retained as an independent contractor. Nothing contained in this Agreement will be construed to create a joint venture, partnership, or like relationship between the Parties, and their relationship is and will remain that of independent Parties. In no event will either Party be liable for the debts or obligations of the other Party. This Agreement shall be binding upon and inure to the benefit of Client and CDM and their respective successors and assigns. CDM may assign this Agreement. Client may not assign this Agreement. 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. Except as explicitly set forth herein, none of the provisions of this Agreement will be for the benefit of or enforceable by any third party. If any term of this Agreement is held invalid, illegal or unenforceable for any reason, the remainder of the provision shall continue in full force and effect, and it is the intent of the parties that a valid, legal and enforceable provision with the same intent and economic effect be substituted. Except as may be required by law or contemplated herein, neither Party shall disclose, publicize or advertise in any manner the discussions and/or negotiations giving rise to the Agreement or the existence or terms of the Agreement without the prior written consent of the other Party as to the timing, medium and content of such disclosure. The Order Form may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one instrument.

 

15. Attorneys’ Fees. In the event of litigation between the parties concerning this Agreement, the prevailing party will be entitled to recover reasonable costs and expenses incurred in the litigation and any appeal therefrom, including costs, reasonable attorneys’ fees and reasonable experts’ fees.
16. Governing Law. This Agreement shall be governed by the laws of the State of Nevada, without reference to its conflict or choice of law principles.
17. Non-Assignment. Neither this Agreement, nor any rights or obligations in this Agreement, shall be assigned or otherwise transferred by either party without the written consent of the other party, which consent shall not be unreasonably withheld.  If any assignment is made, by operation of law or otherwise, in violation of this provision, then this Agreement shall terminate.
18. Amendment. No modification of this Agreement shall be valid unless set forth in writing and signed by both parties.
19. Counterparts. This Agreement may be executed in any number of counterparts and by facsimile, each one of which shall be an original and all of which shall constitute one and the same document.