Last updated May 2017. Change Log:
- August 2017: Added additional Ongoing Monthly Fees based on Adwords budget
- May 2017: Added all terms online
This Services Agreement (this “Agreement“) is made effective as of the day these terms are accepted online (the “Effective Date”), by and between Atria Media Group, a Utah limited liability company doing business as Atria Media Group, (the “Company“) and you (the “Customer“). In consideration of the mutual promises herein, the parties hereby agree as follows:
(a) Subscription. Customer hereby subscribes to the services (the “Services”) as described in this section, as adjusted from time to time, and the Company agrees to perform the Services, all in accordance with the terms and conditions of this agreement.
(b) Trial Period Services. During the initial trial period and as long as the Customer is subscribed to the Services the Company will provide the following:
(i) Campaign Set Up. In the Customer’s existing Adwords account, the Company will set up a new search campaign which will include keyword research, competitor research, past performance analysis, 2-3 ads per ad group created, 3 or more ad groups, and custom campaign settings.
(ii) Ongoing Optimization. Depending on the performance of the new campaign the Company will optimize areas such as ad rotation/testing, bid monitoring and optimization, and performance enhancement.
(iii) Adwords Certified Analyst. Any employee or contractor of the Company who works on the Customer’s Google Adwords account will be certified by Google.
(iv) Support. Unlimited email support will be provided by the Company which will respond to questions and reasonable requests in a reasonable amount of time during regular business hours.
(v) Reporting. The Customer will have access to a monthly report that will detail the performance of the campaign which will include top performing keywords, ads ad groups, and campaigns. Additional updates can be provided upon the Customer’s request.
(c) Ongoing Services. After the initial trial period the Company will provide the Services listed above (Trial Period Services) in addition to the following:
(i) Conversion Tracking. Company will work the Customer to determine the best online actions to track as conversions and facilitate implementation of the necessary codes to be able to track conversions in Adwords.
(ii) Google Analytics. Company will verify and, if necessary, setup Google Analytics and link Google Analytics data to Customer’s Adwords account.
(iii) Call Tracking. If Customer desires, Company will install and provide a 3rd party call tracking service on the Customer’s website at no additional cost
(iv) Advanced Optimization. As data is accumulated in the Adwords account the Company will provide continual and ongoing optimization strategies that include items such as quality score review, search query reviews to identify profitable keywords, negative keyword buildout, device performance optimization, landing page consultation, new ads to A/B split test, new ad group build out, new campaigns including remarketing, display and shopping.
(d) Fees. Customer shall pay Company the fees as set forth below, as adjusted from time to time. Ongoing Monthly Fees are determined based on the Adwords monthly budget as specified by the Customer during the trial period. Fees are non-refundable:
(i) Initial Trial Month Fee: $7.00
(ii) Ongoing Monthly Fees:
(a) Adwords Starter – $299 (Adwords budget up to $750 per month)
(b) Adwords Basic – $449 (Adwords budget up to $1,500 per month)
(c) Adwords Smart – $699 (Adwords budget up to $3,000 per month)
(d) Adwords Pro – $899 (Adwords budget up to $6,000 per month)
(e) Adwords Enterprise – 15% of Adwords spend (Adwords budget $6,000+ or more per month)
2. Term and Termination.
(a) Term. The initial term of this Agreement shall be for a period of one (1) months, commencing on the Effective Date. The Customer shall have the option to automatically renew for additional successive one (1) month terms, unless terminated pursuant to Subsection 2(b) (Termination) of this Agreement.
(b) Termination. Although this Agreement may not be terminated without cause during the initial term, either party may forego automatic renewal by giving the other party not less than seven (7) calendar days written notice via email of termination prior to the expiration of the then-current term. If either party breaches any provision of this Agreement, the non-breaching party shall, upon providing written notice of such breach, be entitled to immediately terminate this Agreement, provided such breach is not cured within seven (7) days following such notice. If this Agreement is terminated as a result of a breach, the non-breaching party shall, in addition to its right of termination, be entitled to pursue legal remedies against the breaching party. Notwithstanding the foregoing, if Customer is in breach under Section 3(a) (Billing) of this Agreement, Company may terminate this Agreement effective five (5) days after giving Customer written notice of such default, unless Customer shall have remedied the breach within such five (5) day period.
3. Billing and Payments.
(a) Billing. At the beginning of each billing cycle, Company will invoice Customer for all Fees applicable to that billing cycle. Customer shall pay Provider’s fees for Services as specified in Section 1(d) (Fees). This shall be paid monthly due upon receiving Company’s invoice, unless otherwise specified. If Customer becomes five (5) or more days past due, the Services shall be suspended until all past due charges are paid, and Customer shall be in default of this Agreement.
(b) Payments. Customer authorizes Company to charge Customer’s credit card for the payment for monthly Fees. Customer understands that payments, such as monthly Service Fees will be billed automatically. Monthly recurring payment receipts are sent to Customer via email upon payment completion.
(c) Taxes. Each Party shall bear and pay all of its own taxes (including, without limitation, income taxes) arising under applicable laws in connection with the performance of this Agreement.
(a) Warranties, Indemnification & Disclaimers. Company hereby represents and warrants that it has (a) qualified personnel, appropriate facilities and adequate resources in order to discharge the Services in a timely and efficient manner, and (b) the necessary experience required to perform the Services in a competent and professional manner. EXCEPT AS OTHERWISE STATED IN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OR CLAIMS, EXPRESSED, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Company NEITHER ASSURES NOR ASSUMES ANY LIABILITY TO ANY PERSON OR ENTITY FOR THE PROPER PERFORMANCE OF SERVICES. Company DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS COMPLETE OR FREE FROM ERROR, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON OR ENTITY FOR LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN THE SERVICE, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE. THIS ALSO INCLUDES POTENTIAL OVERSPENDING OF BUDGET FOR PAY PER CLICK CAMPAIGN AD SPEND WHICH IS PAID FOR BY CUSTOMER AND MANAGED BY COMPANY.
(b) Limitation Of Liability. Company SHALL HAVE NO LIABILITY UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT FOR ANY LOSS, LOSS OF PROFIT OR REVENUE OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF Provider IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. THIS ALSO INCLUDES POTENTIAL OVERSPENDING OF BUDGET FOR PAY PER CLICK CAMPAIGN AD SPEND WHICH IS PAID FOR BY CUSTOMER AND MANAGED BY COMPANY.
(c) Indemnification. Customer and Company agree to indemnify, defend and hold the other harmless from and against all third party claims, losses, liabilities, costs and expenses arising out of or related to the use of the Service by the other party, or attributable to the other party’s breach of this Agreement, provided that the party gives the other party prompt written notice of any such claim.
5. Dispute Resolution.
(a) Arbitration. Except as provided otherwise herein, any and all disputes relating to this Agreement (“Disputes”), including claims under Federal, state, municipal or other jurisdictional statute, rule or regulation and under any legal or equitable theory or cause of action, shall be settled by binding arbitration held before a neutral arbitrator in Salt Lake City, Utah and administered by the American Arbitration Association in accordance with its National Rules for the Resolution of Commercial Disputes (the “Rules”). The arbitrator will issue a written decision and will have the power to (i) award legally available remedies, including attorneys’ fees and (ii) decide motions brought by either party. Each party shall bear their own arbitration costs. Customer (A) is executing this Agreement voluntarily and without any duress or undue influence, (B) has carefully read this Agreement and understands it (C) understands it is WAIVING ITS RIGHT TO A JURY TRIAL and (D) has had an opportunity to seek the advice of an attorney. Except as provided by the Rules and this Agreement, arbitration will be the sole, exclusive and final remedy for any Disputes.
(a) Injunctive Relief. The Company may petition a court for injunctive relief, as permitted by the Rules for Customer’s alleged violation of Sections 6, 7, or 8. Any such violation will cause the Company irreparable injury and money damages will not provide an adequate remedy therefore. Customer consents to injunctive relief, without posting any bond or other security, compelling Customer to comply with such provisions. In the event the Company seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorney’s fees.
Each party shall (i) use the Confidential Information of the other party only in connection with the performance of this Agreement (ii) hold such Confidential Information in strictest confidence and not disclose any such Confidential Information to any third party (except employees or consultants of such party who are bound by obligations with respect to such Confidential Information no less restrictive than those of this Section 6) and (iii) apply best efforts to prevent the unauthorized disclosure of such Confidential Information. Each party shall notify the other party in writing immediately upon learning of the occurrence of any unauthorized release or other breach of this Section 6. This Section 6 shall continue until such Confidential Information ceases to be Confidential Information. “Confidential Information” of either party means any information relating to such party’s actual or anticipated business. Except as provided otherwise in this Agreement, Confidential Information does not include information that (a) was in the receiving party’s possession without restriction before receipt from disclosing party; (b) is or becomes publicly available without breach of this Agreement; (c) is independently developed by the receiving party, as shown by such party’s written records; or (d) is rightfully received by the receiving party from a third party without confidentiality obligations.
Confidential Information of either party is and will remain the sole property of such party. Upon payment of all Fees, Customer shall own all deliverables provided to Customer under this Agreement; provided that nothing in this Agreement shall prevent the Company from providing services similar or identical to competitors of Customer. Customer agrees that any discovery, innovation, improvement, idea or invention the Company conceives or develops in connection with the Services or the Company’s business (“Innovations”) is and shall be the sole and exclusive property of the Company. Each party agrees to perform all acts reasonably deemed necessary or desirable by the other party to carry out this Section 7.
During the Term and for a period of twelve (12) months thereafter (the “Nonsolicit Period”), Customer shall not, without the Company’s prior written consent, (i) hire or retain the services of any past or current employee or contractor of the Company to provide substantially similar services provided by the Company, (ii) directly or indirectly, solicit or encourage any employee or contractor of the Company to terminate employment with, or cease providing services to, the Company or (iii) intentionally interfere with the Company’s relationship with any partner, supplier, customer or client of the Company. In the event Customer violates Section 8(i), Customer agrees (a) to pay the Company $20,000 as a finders fee (which shall not constitute punitive damages) and (b) that the Term shall extend (and may not be terminated by Customer pursuant to Section 2(b)) to the extent necessary such that this Agreement does not terminate prior to the one-year anniversary of such violation, or in the event that Customer has terminated this Agreement prior to such violation, that this Agreement shall revive and become effective in full force and effect on the parties hereto notwithstanding such termination for a period of one-year from such violation (and may not be terminated by Customer pursuant to Section 2(b).
(a) Proprietary Marks. Neither party will use, or permit their respective employees, agents and subcontractors to use the trademarks, service marks, copyrighted material, logos, names, or any other proprietary designations of the other party, or the other party’s affiliates, whether registered or unregistered, without such other party’s prior written consent.
(b) Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes any prior understanding or agreement, oral or written, relating to the Service. Any alterations to this agreement must be in writing and signed by both parties.
(c) Severability. If any of the provisions of this Agreement becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
(d) Governing Law; Venue. This Agreement shall be governed by the laws of the State of Utah without regard to conflict of laws principles. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located within Utah for any court proceedings relating hereto.
(e) Relationship of Parties. Neither party is nor shall be a partner, joint-venturer, agent or representative of the other party solely by virtue of this Agreement. Neither party has the right, power or authority to enter into any contract or incur any obligation, debt or liability on behalf of the other party.
(f) Uncontrollable Events. No party shall be liable for any delay or failure in its performance of any of the acts required by this Agreement when such delay or failure arises for reasons beyond the reasonable control of such party. The time for performance of any act delayed by such causes shall be postponed for a period equal to the delay; provided, however, that the party so affected shall give prompt notice to the other party of such delay. The party so affected, however, shall use its best efforts to avoid or remove such causes of nonperformance and to complete performance of the act delayed, whenever such causes are removed.
(g) Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the prior written consent of Company, which shall not be unreasonably withheld.
(h) Notices. All notices under this Agreement shall be in writing (which may electronic) and delivered to the principal business address, facsimile number or e-mail address of the receiving party or to such other address or number as such party shall have furnished to the other party. All such communications will be deemed given the earlier of (a) receipt; (b) personal delivery; (c) delivery by facsimile (with proof of transmission) or e-mail (with no evidence of delivery failure within 24 hours); (d) one business day after deposit with an overnight courier service of recognized standing; or (e) Four days after deposit in the U.S. mail, first class with postage prepaid.
(i) Restrictions on Use. Customer agrees, represents, and warrants to Company, both during and after the term of this Agreement, the following provisions:
(i) Unless expressly authorized, the Services are for the sole use within Customer’s own organization and by Customer’s own employees or agents. The Services may not be shared with affiliates or any third party, including joint marketing arrangements.
(ii) Unless expressly authorized, Customer shall not: (1) disclose, use, disseminate, reproduce or publish any portion of the Services in any manner, (2) permit any parent, subsidiaries, affiliated entities or other third parties to use the Services or any portion thereof (3) process any portion of the Services or permit any portion of the Services to be processed with other data or software from any other source, or (4) use the Services to create derivative products.
(iii) Customer and Company shall (1) abide by all prevailing federal, state, and local laws and regulations of any kind governing fair information practices and consumers’ rights to privacy, including without limitation any applicable non-solicitation laws and regulations; and (2) limit access to consumer information to those individuals who have a “need to know” in connection with Customer’s business and will obligate those individuals to acknowledge consumers’ rights to privacy and adhere to fair information practices and consumer’s right to privacy.
(iv) Customer shall not use the Services in any way that (1) infringes on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy, (2) violates any law, statute, ordinance or regulation, or (3) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing.
(j) Provision of Information and Personnel. Customer shall make available to Company such information as is reasonably required for Company to effectively fulfill and perform the Services. Such information includes, but is not limited to, monthly updates on performance of Services for the duration of this Agreement or any amendments thereto. Notwithstanding the foregoing, Customer agrees to make its team available to Company according to the relevant areas of responsibility as needed for completing the Services.
(k) Failure by Customer of Delivery of Information. Customer shall deliver all information necessary for Provider to perform the Services listed in Section 1 (Services). In the unlikely event, that Customer cannot deliver the information to Company, then Customer shall not hold Company liable for failure of execution of Services.