Terms & Conditions
1. Services. Client requests and HLM agrees to provide those marketing services listed in Exhibit “A” (the “Services”), in the time frame set forth on Exhibit “A”, subject to adjustment based on the specifics of the project and any changes to scope which may occur. HLM shall use its personnel and equipment to perform the Services or shall use appropriate sub-contractors whom shall be the full responsibility of HLM. In addition, HLM may recommend or Client may request, from time-to-time, additional work not set forth in this Agreement (“Additional Services”). All Additional Services will be subject to the terms of this Agreement and will be billed in accordance with the amount quoted by HLM to Client, or in the amount(s) set forth in Exhibit “A” referring to Additional Services. All work to be performed by HLM shall be completed according to the specifications agreed upon by the parties, or in accordance with reasonable industry best practices.
2. Duties of Client. Client agrees to cooperate fully with HLM in the execution of the Services, and to provide all materials, content, account and site access, assets, and/or other things needed for completion of the Services. The delay or failure of the Client to do so shall not delay, reduce, or mitigate in any way Client’s responsibility to meet its payment obligations as set forth in paragraph 3 below. Client acknowledges that HLM currently supports website performance on browser versions supported by the browser manufacturers only. Some features of Client’s website may have limited functionality on IE11 for less than 1% of users as Windows is supporting the migration from IE11 to Chromium Edge.
3. Payment. In exchange for the Services, Client agrees to pay HLM fees based on the schedule set forth in Exhibit “B”. HLM shall submit a monthly invoice (on either the 1st or 15th of the Month) to Client indicating the Services performed in accordance with Exhibit “A” and any Additional Services for which charges are due. Payments set forth on Exhibit “B” shall be due on that timeline regardless of when (or if) invoices are sent by HLM or received by Client. HLM reserves the right to charge a late fee of $50 for any payment not received within 10 days of the due date, and an additional 10% (of all Services fees owed) if an account remains delinquent after 30 days. Waiver of these late fees on any occasion does not preclude levying those fees should a later delinquency occur.
4. Term. The Term of this Agreement shall run in accordance with the timeline set forth on Exhibit “B” and Client understands that HLM is relying on payment for that full term in agreeing to perform the Services. After completion of the timeline set forth on Exhibit “B”, this Agreement, and the monthly Services being performed by HLM, will continue on a month-to-month basis, at a rate 20% higher than the rate in place at the end of the Term until such time as termination, as set forth in paragraph 5 below, takes place.
5. Termination. This Agreement may be terminated only upon 30 days written notice, and no earlier than the end of the time period agreed upon in Exhibit “A” or as set forth in Section 4 above. In the event of a material breach or a failure to comply with any covenant, term, or condition of this Agreement prior to the end of the Term, a party may terminate this Agreement, but only after the non-breaching party has provided written notice of such breach or failure to comply and the same remains uncured for thirty (30) days after non-breaching party gives such notice in the event of any other breach hereunder. In the event Client fails to pay any fees owed for 30 days, HLM may put a notice on each page of Client’s website noting that payment is past due. Should Client fail to pay any fees owed for 60 days, HLM reserves the right to disconnect Client’s website entirely and Client recognizes that this could result in significant negative impact on Client’s business and web property, for which Client assumes full responsibility. At the time of Termination, and only once HLM has been paid in full for all Services, within 30 days it shall provide Client with a zip file containing a working version of the website which can be installed on another host account and shall spend no more than one hour to answer any questions Client may have regarding the site. This transfer does not include the MYCE platform or any underlying technology supporting that website. Once the transfer is complete as described in this paragraph, HLM shall have no ongoing obligations to advise, support, or maintain Client or its site.Termination of any kind shall not preclude Client’s obligation to make full payment for the entirety of the Term.
6. Intellectual Property. A) Client affirms that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to HLM for use in connection with the Services are owned by the Client, and/or that the Client has legally valid permission to use each of these elements. B) HLM affirms that any intellectual property developed by HLM specifically on behalf of Client, and solely for Client’s use, shall be the sole and exclusive property of Client. C) Client affirms that while it has a license to use them for the sole purpose of delivery of the Services, all of HLM’s technology (including, but not limited to its MYCE™ and Footprint technologies) processes, or methodologies disclosed in the course of performance of this Agreement, including, without limitation: any information, idea, plans, financial models, analyses, products, inventions, software code, computer programs, technical processes, trade secrets, data, database lists, technical information, all other computer software created, developed, improved and/or modified by or on behalf of HLM whether in oral, written, graphic or electronic form, remains the property of HLM.
7. Indemnification. The parties shall defend, indemnify and hold each other harmless (including their respective shareholders, directors, officers, agents, subcontractors and employees) from and against all claims, liabilities, losses, judgments, costs, damages, expenses and attorney’s fees in connection with any threatened, pending or completed action, suit of proceeding, whether civil, criminal, administrative, or investigative, to which the other party is, was, or at any time becomes a party or is threatened to be made a party, due to the acts or omissions of a party while fulfilling its duties under this Agreement.
8. Disclaimer of Liability. CLIENT HEREBY RELEASES HLM FROM ANY LIABILITY FOR DAMAGE TO THEIR BUSINESS, WHETHER OR NOT CAUSED BY ACTS OR OMISSIONS OF HLM IN THE PERFORMANCE OF THE SERVICES OR ADDITIONAL SERVICES, ITS EMPLOYEES, AGENTS OR CONTRACTORS, AND CLIENT HEREBY WAIVES ANY AND ALL CLAIMS AND RIGHTS OF RECOVERY AGAINST HLM OR ITS EMPLOYEES FOR DAMAGE, LOSS OR INJURY CAUSED BY OR RESULTING FROM BUSINESS LOSSES OF ANY KIND. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT HLM SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OR LOSSES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE OF THE SERVICES OR ADDITIONAL SERVICES, REGARDLESS OF THE CLAIM, EVEN IF HLM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR IF SUCH LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.
9. Taxes. Client shall pay all sales, consumer, use, internet commerce, and other similar taxes or tariffs required by law and shall secure all permits, fees, and licenses necessary for the execution of the Services.
10. No Guarantees. HLM makes no guarantees regarding the amount of impressions, clicks, calls, leads, performance of marketing of any kind, or the search engine placement of Client’s website and/or citations. Likewise, Client acknowledges that its website, pages, and marketing will not operate uninterrupted, and will be subject to the ordinary course errors, outages, and interruptions which are common on the Internet.
11. Governing Law. This Agreement is governed by and shall be interpreted in accordance with the laws of the State of Michigan. Any action arising solely out of this Agreement shall be brought in accordance with the Michigan Arbitration Act in the County of Oakland, State of Michigan. Client and HLM understand and agree that they are waiving their rights to have any claims or disputes arising from this relationship in a court and agree to submit any and all disputes to arbitration before a neutral arbitrator instead. Both parties retain the right to be represented by counsel in the arbitration hearing. Both parties agree to pay all of their own costs in the event binding arbitration is necessary, and to equally share the cost of the arbitration process, including the arbitrator, regardless of who brought the claims or their outcome.
12. Notices. Any notices concerning the Agreement shall be sent via any method with a verifiable delivery tracking receipt, to the address shown on the first page of the Agreement, or such other address as specified by the parties in writing. Notice shall be effective upon receipt.
13. Miscellaneous. To the extent that any of the provisions of this Agreement, or any portion of any provision, shall be found to be illegal or unenforceable for any reason, that provision or portion of a provision shall be modified or deleted in such a manner so as to make this Agreement as modified legally enforceable under applicable laws, and the balance of the Agreement shall not be affected by that modification or deletion, the balance being construed as severable and independent. A failure to exercise any right or remedy hereunder shall not operate as a waiver thereof. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law or in equity. Neither party may assign this Agreement, nor any of its rights and/or obligations hereunder, to any third party.
14. Complete Agreement. Client and HLM expressly agree that the Agreement contains the entire agreement between the Client and HLM and supersedes all prior or contemporaneous oral or written agreements, and may not be modified, except as provided for herein, unless said modification is contained in a writing signed by the Client and HLM.