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Terms & Conditions
Engagement. Client, by its execution hereof, engages Hardware Store Marketing Experts as an independent consultant to perform the services outlined in theproposal on the reverse side of these Terms and Conditions of Service (“Terms and Conditions”). These Terms and Conditions, together with the terms and provisions contained on the reverse side of the Terms and Conditions, are hereinafter referred to collectively as the “Agreement.”
Term. This Agreement shall become effective on the date accepted by Hardware Store Marketing Experts on the reverse side of this Agreement and shall continue for one full year (12 months) and then continue on a month-to-month basis there after. This Agreement may be terminated immediately by Hardware Store Marketing Experts if (i) Client fails to pay any fees as and when due hereunder, or (ii) Client ceases to cooperate with Hardware Store Marketing Experts or otherwise makes it difficult for Hardware Store Marketing Experts to perform the services contracted hereunder, or (iii) Hardware Store Marketing Experts discovers that Client is
utilizing its website for any purpose that violates federal, state or local law.
Fees and Payments. During the Term, Client agrees to pay in full when due the monthly fees for the service selected by Client on the reverse side of this Agreement. The first monthly fee shall be due upon acceptance of this Agreement by Hardware Store Marketing Experts. All subsequent monthly fees under this
Agreement shall be due on the same calendar day of each successive month (i.e., if the Agreement is accepted on May 10, subsequent monthly fees payments shall be
due on June 10, July 10, etc.). Client acknowledges and agrees that any fee not paid within ten (10) days after its due date shall bear interest at the rate of 1.5% per
month from such tenth (10th) day until paid. Once paid, all fees shall be nonrefundable. Hardware Store Marketing Experts reserves the right, at any time and from time to time, to increase the monthly and other fees charged by Hardware Store Marketing Experts for the services provided hereunder upon forty-five (45) days’ prior
notice to Client.
General Changes. Unless otherwise provided in the Proposal, client is allowed three design changes to the initial design. Client shall pay additional charges for
changes in excess of the three design requests or after sign off of design, at Hardware Store Marketing Experts’s standard hourly rate of $75.00 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein.
Substantive Changes. If Client requests or instructs Changes that amount to a revision in or near excess of 50 percent ( 50%) of the time required to produce the Deliverables, and or the value or scope of the Services, Hardware Store Marketing Experts shall be entitled to submit a new and separate Proposal to Client for
written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by
Hardware Store Marketing Experts
Timing. Hardware Store Marketing Experts will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake
commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified
for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s
concerns, objections or corrections to Hardware Store Marketing Experts. Hardware Store Marketing Experts shall be entitled to request written clarification of any
concern, objection or correction. Client acknowledges and agrees that Hardware Store Marketing Experts’s ability to meet any and all schedules is entirely dependent
upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall
not constitute a breach of any term, condition or Hardware Store Marketing Experts’s obligations under this Agreement.
Client Consent to Installation of Telephone Tracking Number. Client consents to the placement of a telephone tracking number on Client’s website and on offsite videos, and further consents to the recording of all telephone calls that are routed through the telephone tracking number. Client understands that the telephone tracking number will remain on the Client’s website and embedded in Client’s off-site videos during the Term. Within a reasonable time after the termination of this
Agreement, the telephone tracking number will be removed from Client’s website, but will remain on Client’s off-site videos. Client may request that Client’s off-site
videos be removed by Hardware Store Marketing Experts, but understands that Hardware Store Marketing Experts will not separately remove the embedded tracking
number from Client’s off-site videos, even upon termination of this Agreement. At the termination of this Agreement, and provided that Client has paid in full all of
the fees due hereunder, including any interest due on the fees payable hereunder, Client will port the telephone tracking number to Client at no cost to Hardware Store
Marketing Experts. Upon termination of this Agreement, Client shall have sixty (60) days from the effective date of termination to move its website to another
website host. If Client has not, by the end of such sixty (60) day period, moved its website to a new website host, Hardware Store Marketing Experts shall have the
authority and right, without notice to or the consent of Client, to remove Client’s website from Hardware Store Marketing Experts’ server, with no liability to
Hardware Store Marketing Experts for such removal
Client Authorization. Client authorizes Hardware Store Marketing Experts to (i) access without limitation Client’s website to analyze its content and structure; (ii) to alter Client’s website as necessary or desirable in Hardware Store Marketing Experts’ sole and absolute discretion for purposes of search engine optimization, and for
any other purpose agreed to by Client and Hardware Store Marketing Experts; (iii) upload such pages and content to the Client’s website as Hardware Store Marketing
Experts deems appropriate in its sole and absolute discretion for purposes of search engine optimization; (iv) make use of all of Client’s logos, trademarks, copyrights,
website images and similar items to create informational pages and for other uses deemed necessary by Hardware Store Marketing Experts to provide the services
subscribed for hereunder; and (v) communicate with third parties as Hardware Store Marketing Experts deems necessary in its sole discretion to perform Hardware
Store Marketing Experts’ services hereunder, including but not limited to Client’s web designer
Client Consent to Installation of Telephone Tracking Number. Client consents to the placement of a telephone tracking number on Client’s website and on offsite videos, and further consents to the recording of all telephone calls that are routed through the telephone tracking number. Client understands that the telephone tracking number will remain on the Client’s website and embedded in Client’s off-site videos during the Term. Within a reasonable time after the termination of this
Agreement, the telephone tracking number will be removed from Client’s website, but will remain on Client’s off-site videos. Client may request that Client’s off-site
videos be removed by Hardware Store Marketing Experts, but understands that Hardware Store Marketing Experts will not separately remove the embedded tracking number from Client’s off-site videos, even upon termination of this Agreement. At the termination of this Agreement, and provided that Client has paid in full all of the fees due hereunder, including any interest due on the fees payable hereunder, Client will port the telephone tracking number to Client at no cost to Hardware Store Marketing Experts. Upon termination of this Agreement, Client shall have sixty (60) days from the effective date of termination to move its website to another website host. If Client has not, by the end of such sixty (60) day period, moved its website to a new website host, Hardware Store Marketing Experts shall have the authority and right, without notice to or the consent of Client, to remove Client’s website from Hardware Store Marketing Experts’ server, with no liability toHardware Store Marketing Experts for such removal.
Client Acknowledgments. Client makes the following acknowledgments: (i) that Hardware Store Marketing Experts cannot control or exert influence over the
policies or operations of any search engine companies or any other third parties regarding the content of the sites that are accepted by the search engine companies or
other third parties; (ii) that Hardware Store Marketing Experts will not be responsible for any changes or alterations to Client’s website made by Client or any third
parties that negatively impacts the rankings or visibility of Client’s website; (iii) that because the results of the services to be provided by Hardware Store Marketing Experts hereunder depend upon a number of factors outside of Hardware Store Marketing Experts’ control, Hardware Store Marketing Experts cannot guarantee the
results of its services to Client; (iv) that because the utilization of certain keywords and key phrases are very competitive, and because search engines are constantly
changing search engine ranking algorithms, Hardware Store Marketing Experts cannot guarantee that Client’s website will achieve the highest search result position in
any search engine or consistent search result positions in the top rankings; (v) that certain search engine companies may affect the rankings of new and/or unproven
companies (for example, “sandboxing”); (vi) that search engines will, from time to time, drop listings without specific causes; and (vii) that while Hardware Store
Marketing Experts shall use commercially reasonable diligence to promptly submit and/or effect a change in rankings of Client’s website, some search engines may
take several months or longer to list and/or effect a change in rankings.
Force Majeure. Hardware Store Marketing Experts shall not be liable for, nor considered to be in breach under this Agreement due to, delay or failure to perform under this Agreement as a consequence of any conditions that are beyond Hardware Store Marketing Experts’s reasonable control after exercising commercially reasonable efforts.
Client Consent to Installation of Telephone Tracking Number. Client consents to the placement of a telephone tracking number on Client’s website and on offsite videos, and further consents to the recording of all telephone calls that are routed through the telephone tracking number. Client understands that the telephone tracking number will remain on the Client’s website and embedded in Client’s off-site videos during the Term. Within a reasonable time after the termination of this
Agreement, the telephone tracking number will be removed from Client’s website, but will remain on Client’s off-site videos. Client may request that Client’s off-site
videos be removed by Hardware Store Marketing Experts, but understands that Hardware Store Marketing Experts will not separately remove the embedded tracking
number from Client’s off-site videos, even upon termination of this Agreement. At the termination of this Agreement, and provided that Client has paid in full all of the fees due hereunder, including any interest due on the fees payable hereunder, Client will port the telephone tracking number to Client at no cost to Hardware Store
Marketing Experts. Upon termination of this Agreement, Client shall have sixty (60) days from the effective date of termination to move its website to another website host. If Client has not, by the end of such sixty (60) day period, moved its website to a new website host, Hardware Store Marketing Experts shall have the authority and right, without notice to or the consent of Client, to remove Client’s website from Hardware Store Marketing Experts’ server, with no liability toHardware Store Marketing Experts for such removal.
DISCLAIMERS OF LIABILITY. IN ADDITION TO ANY DISCLAIMERS OF LIABILITY FOUND ELSEWHERE IN THESE TERMS AND
CONDITIONS, Hardware Store Marketing Experts SHALL NOT BE LIABLE TO CLIENT FOR INDIRECT, SPECIAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, LOST PROFITS, WHETHER FORESEEABLE OR
BASED ON BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY OR NEGLIGENCE ARISING UNDER OR IN CONNECTION WITH
THIS AGREEMENT, NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED IN THIS AGREEMENT. Hardware Store Marketing
Experts MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO
ANY PRODUCTS OR THIRD PARTY CONTENT OF, OR SOFTWARE, EQUIPMENT OR HARDWARE OBTAINED FROM, ANY THIRD
PARTIES. Hardware Store Marketing Experts will not be responsible for results due to any alterations or overwrites made to a website by another party, as Client
understands that this can adversely affect the search engine rankings of Client’s website(s), nor for the effect of Client linking to any particular websites without the prior consultation and approval of Hardware Store Marketing Experts
Governing Law/Arbitration. This Agreement shall be governed by and under the laws of the State of Arizona without regard to conflict of laws principles. Any
controversy or claim arising out of or under, or relating to, this Agreement, including but not limited to authority to sign this Agreement, contract formation issues,
fraud or the breach of any provision hereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, in any arbitration hereunder, the arbitrator shall have no authority to award any relief outside the scope of all disclaimers stated in this Agreement. All arbitration
proceedings brought hereunder shall be located exclusively in Yavapai County, Arizona
Miscellaneous. This Agreement may not be assigned by Client without the prior written consent of Hardware Store Marketing Experts which may be withheld or
denied by Hardware Store Marketing Experts in its sole and absolute discretion. The terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the parties hereto. The prevailing party in any suit, action or proceeding (including, but not limited to, an
arbitration proceeding) arising out of or in connection with this Agreement, shall be entitled to an award of reasonable attorneys’ fees, costs and disbursements
incurred by it in connection therewith. Any failure by Hardware Store Marketing Experts to insist upon strict compliance with any of the terms, covenants or
conditions of this Agreement shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power
hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. All previous communications about the
subject matter of this agreement, either oral or written, are hereby abrogated and withdrawn, and this agreement constitutes the entire agreement between Client and
Hardware Store Marketing Experts with regard to the subject matter hereof. No terms, conditions, understandings, or agreements purporting to modify or vary the
terms of this document shall be binding unless hereafter made in writing and signed by both Client and Hardware Store Marketing Experts. There are no third party
beneficiaries of or to this Agreement or any of the provisions hereunder. This Agreement may be executed in counterparts, each of which shall be deemed an original,
and all of which shall constitute one and the same instrument. Any signature to this Agreement that is transmitted by fax or email transmission shall be considered an
original signature for all purposes. It is the intent of the parties hereto that all provisions of this Agreement shall be enforced to the fullest extent
possible. Accordingly, if any arbitrator determines that the scope and/or operation of any provision of this Agreement are too broad to be enforced as written, the
parties hereto intend that the arbitrator should reform such provision to the minimum extent necessary to render such provision enforceable. If, however, any
provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future law, and not subject to reformation, then such provision shall be fully severable, and this Agreement shall be construed and enforced as if such provision was never a part of this Agreement. The rule of construction that an
ambiguity in a contract will be construed against the drafter is hereby waived by both parties hereto.
By signing this Agreement below, Client acknowledges and affirms that Client has read and fully understands the Terms and Conditions of Service on the
reverse side of this Agreement, which Terms and Conditions form an integral part of this Agreement. Hardware Store Marketing Experts:
Hardware Store Marketing Experts
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