3. The Customer shall designate an employee in writing as the “Customer Contact” who shall be available to meet with Consultant when reasonably required by Consultant for the purposes of discussing the status of the Services. Consultant will communicate regularly with the Customer Contact to report to the Customer on the status of the Services.

Consulting Rates and Other Expenses

4. Consultant will provide Services to the Customer and will be entitled to charge the Customer for such Services at the rates specified in the Marketing Schedule.

Payment of Invoices

5. Initial payment is due on the Effective Date. All subsequent invoices issued by Consultant are due and payable by the first day of the applicable billing cycle (the “Due Date”). Billing Cycles as follows:1st – 7th, Due date on 7th of each month, 8th – 14th, Due date on 14th of each month, 15th – 21st, Due date on 21st of each month, 22nd – EOM Due date on the EOM each month.  If payment is not made within 15 days of the Due Date interest will be charged at a rate of 2%, an additional 2% will be charged if not paid within 30 days.  Additional interest will be charged at a rate of 4% of the account balance monthly until account is current.  If the Customer fails to pay Consultant in full in accordance with these terms, all deliverables set forth in the Schedule will be suspended until payment is received.

Confidentiality

6. Neither party will disclose to any third party, or use other than for the purposes of this Agreement, any knowledge or information imparted to or obtained by it during or in connection with the fulfillment of this Agreement which is of a secret or confidential nature relating to the business, equipment, processes, products, software, services, or business strategies offered or employed by the other. This obligation of confidence will cease to apply in relation to information that a party is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach of the obligations of confidence under this Agreement. Each party will retain all right, title, and interest to such party’s confidential or proprietary information. No license to any intellectual property is either granted or implied by the conveying of confidential or proprietary information.

Disclaimer of Warranty; Limitations of Liability

a) To the extent permitted by the law, CONSULTANT EXPRESSLY DISCLAIMS ALL WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CONSULTANT MAKES NO OTHER WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES, SOFTWARE OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE. NO AGENT OR EMPLOYEE OF CONSULTANT IS AUTHORIZED TO MODIFY THESE PROVISIONS REGARDING WARRANTIES.

b) NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT WILL CONSULTANT BE LIABLE TO ANY PARTY, INCLUDING THE CUSTOMER, FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM EQUIPMENT OR PROCESSING DOWNTIME, OR LOSS OF SEARCH ENGINE RANKING, WEB TRAFFIC, PROFITS, BUSINESS, USE, DATA, OR ANY OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH OF THIS AGREEMENT OR IN TORT, WHETHER OR NOT FORESEEABLE AND EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. FURTHER, THIS LIMITATION ON DAMAGES IS AGREED AND INTENDED BY THE PARTIES TO SURVIVE EVEN IF INCLUSIVE REMEDIES PROVIDED HEREUNDER FAIL THEIR ESSENTIAL PURPOSE. THE CUSTOMER WILL INDEMNIFY AND HOLD HARMLESS CONSULTANT FROM AND AGAINST ANY CLAIMS BY ANY THIRD PARTY FOR SUCH DAMAGES.

Assistance and Facilities

7. The Customer will provide Consultant with all reasonable assistance and facilities free of charge (including without limitation of the Means of Access and the other Items referred to in the Schedule, office facilities, and liaison with the necessary officers and employees of the Customer) in order to permit Consultant to efficiently provide the Services.
8. The Customer is solely responsible for the proper backup and protection of all of its software and data, as well as the implementation and maintenance of firewalls and security measures (including proper virus control) in relation to the facilities. Consultant is not responsible for any hacking, cracking, viruses, worms, Trojan horses or other malicious code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware caused by third-parties. Any assistance requested of Consultant to address any such malicious attack will be additional services provided at Consultant’s then current hourly rate.

Non-Solicitation

9. The Customer agrees that it will not for a period of three years from the effective date of termination of this Agreement entice away or endeavor to entice away from Consultant any employee of Consultant. The Customer acknowledges that the prohibition and restriction contained in this clause are reasonable in the circumstances and necessary to protect the business of Consultant.

Agreement Non-Exclusive

10. The Customer acknowledges that Consultant is providing Services to the Customer on a non-exclusive basis and that Consultant may provide services of the same or a similar nature as the Services to any other party.

Termination

11. This Agreement may be terminated in the following circumstances: a) By Customer for any reason upon 30 days’ notice after the minimum monthly commitment has passed as defined in the NOTES section of the signed Marketing Service Agreement; b) By Consultant by notice in writing if Customer fails to remedy a breach of this Agreement (including any provision as to payment) within fifteen (15) days of receipt of a notice from Consultant of such breach; or c) By either party immediately upon giving notice in writing (the “Notice”) if the other party takes any corporate action or other steps are taken or legal proceedings are started (and are not withdrawn, discontinued or struck out within twenty-one (21) days) for its winding up, liquidation or dissolution (other than for the purposes of reconstruction) or the appointment of an administrator, receiver, receiver and manager, official manager, liquidator, provisional liquidator, trustee or similar office of it or of any or all of its revenues and assets (“Insolvency Event”), and such Insolvency Event remains in existence in respect of such party at the time of service of the Notice.
12. On termination of this Agreement however occurring, all sums due under the Agreement immediately become due and payable by bank card, certified check, or cashier’s check, including payments due for the thirty (30) day’s cancellation notice.
13. Consultant reserves the right to terminate or deny any service for any reason, including without limitation for failure to pay for Services as agreed upon herein, and with respect to websites in a domain dispute, websites involved in illegal activities, and websites content, files, graphics, or images which may be considered offensive, improper, or obscene, such as relating to pornography, racism, religion, politics, violence, crime, or terrorism.

General

14. Any notice required or contemplated by this Agreement shall be deemed to have been duly given if it is in writing, properly addressed and delivered personally or mailed by registered or certified mail, postage prepaid or transmitted by fax or electronic mail to the Customer or Consultant at the address set out in the Schedule or this Agreement or such other address nominated by a party in writing.
15. This Agreement shall be governed by and must be construed in accordance with the laws of the State of Texas without regard to its conflicts of laws principles, in the United States, and the Customer submits to the non-exclusive jurisdiction of the courts of that State.

Website Marketing and Payments

a) By signing this Agreement, Customer agrees to pay the Marketing Fee each per month (plus any applicable taxes) for a minimum mandatory term defined in the Marketing Agreement from the Effective Date of on-site/off-site marketing services in accordance with the Schedule. Customer understands and acknowledges that a period of up to 6 weeks may be necessary for initial set up and code cleanup for the upSEARCH or upLOCAL services. Off-site marketing deliverables identified in the Schedule will commence 30 days after the Effective Date unless otherwise provided in the Schedule.

b) Customer understands and acknowledges that the Marketing Fee will automatically be charged every 30 days until a 30 day cancellation notice is given in writing. Texas customers will be charged and are obligated to pay sales tax of 8.25% on all Services as required by law.

c)  Chargebacks: In the event that Customer disputes a charge or initiates a chargeback related to any services, Fair Marketing (“Consultant”) takes the following measures to protect its rights and mitigate potential losses:

• Notice and Resolution: Prior to initiating a chargeback, the customer agrees to provide written notice to the Consultant within 30 (thirty) days of the disputed charge or issue. The customer must provide a detailed explanation of the concern or problem and allow the Consultant a reasonable opportunity to address and resolve the issue in good faith.
• Mediation or Arbitration: If the customer and the Consultant are unable to reach a mutually satisfactory resolution through good faith efforts, both parties agree to engage in mediation or arbitration. The method of dispute resolution (mediation or arbitration) shall be determined by the Consultant and communicated to the Customer in writing.
• Binding Decision: The decision reached through mediation or arbitration shall be final and binding on both parties. Both parties agree to abide by the decision and waive any right to initiate or pursue legal action or participate in a class action lawsuit related to the disputed charge or issue.
• No Chargeback: By agreeing to these Terms of Service, the customer acknowledges and agrees that they will not initiate any chargebacks or disputes with their financial institution or payment processor without first following the notice and resolution procedure outlined in this clause.
• Termination of Services: In the event that a customer initiates a chargeback without following the notice and resolution procedure outlined in this clause, the Consultant reserves the right to immediately suspend or terminate the provision of all services to the customer without any liability or obligation.

16. For clarity, Customer understands that this is a pre-payment structure and acknowledges that failure to pay by the applicable Due Date (as defined in Paragraph 5) will suspend all deliverables set forth in the Schedule. Consultant will not refund any deposit or payment once work has begun on Customer’s website as agreed in the Agreement. The Agreement is legally binding upon Customer’s signing of it and remains in effect until terminated as provided herein.

Software, Products and Content Usage Rights

17. By signing this contract Customer also acknowledges and agrees that all coding, content and articles created by the Consultant are copyright protected properties of the Consultant. The Customer has the right to use said coding, content, and articles only so long as the Agreement is in place and payments for Services are in current standing. Upon expiration or termination of the Agreement, (a) Consultant will cease all further delivery of Services, products, software, and content,  (b) Customer will immediately cease to use products, software, and content and will provide prompt access to Consultant as needed to permit Consultant to uninstall or delete Consultant’s software, products, or other proprietary information residing on Customer’s servers,(c) all rights and licenses of Customer under this Agreement will terminate. If Customer has given proper notice of termination, the mandatory minimum term has expired, and Customer has paid in full all sums due under this Agreement then the Customer will retain ownership of any written copy such as blogs, landing pages, press releases, and articles provided during the term of this Agreement.
18. Consultant is not responsible for Customer overwriting optimization work to the Customer’s website. In the event that coding, content, or articles are overwritten or removed intentionally or by accident by the Customer or its agents, an additional fee for reconstruction of the work based on the Consultant’s then-current hourly rate may be charged if the Consultant must restore the work onto the website, including coding, content, and/or articles.
19. Customer acknowledges that Consultant has no control over the policies and practices of search engines, and that keyword competitiveness, ongoing changes in search engine ranking algorithms, and other competitive factors can hinder acceptance and ranking of sites. In order to maintain the flexibility to address search engine changes, upon 15 days advanced notice to the Customer, the Consultant may modify any and all campaign deliverables set forth in the Schedule.
20. This Agreement may be assigned, delegated, or otherwise transferred by Consultant without the prior consent of the Customer. The Consultant may, without the prior consent of the Customer, assign any or all of its rights under this Agreement to (i) a parent, subsidiary, affiliate, or associate of Consultant, or (ii) a purchaser of all or substantially all assets of Consultant. This Agreement shall bind and insure to the benefit of Consultant and Customer and their respective successors and permitted assignees.