Terms of Service

“Exhibit A”

 

Scope of Work

 

Hit or Click Marketing Corp, a.k.a. “Hit or Click Marketing Corp” agrees to perform the services specifically listed in the “Line Item Pricing” section of the Client’s proposal. Client acknowledges that the other information contained within the proposal is for marketing and illustration purposes only, and is not a promise, warranty, or guarantee of any type.

 

General

 

“Hit or Click Marketing” will use its best efforts to provide Client with the services outlined in the “Line Item Pricing” in a timely manner. All items in the “Line Item Pricing” shall be deemed hourly work. The amount of time shall be calculated using the standard rate of $150.00 (one hundred and fifty dollars) per hour. To calculate the hours for the item, divide the price of the item by 150. In no instance shall Hit or Click Marketing Corp “Hit or Click Marketing” be responsible for performing more than the calculated hours for any item.

 

Compatibility

 

For our website development clients “Hit or Click Marketing” will make commercially reasonable efforts to ensure the Website displays using Microsoft Internet Explorer v9.0 and higher, Google Chrome 29.0.1547.76 m, and higher, and Mozilla Firefox v7.0.. “Hit or Click Marketing” may, but is not required to ensure that the Website displays on any other web browser.

 

Additional Billable Work

 

“Hit or Click Marketing” will bill Client for work performed outside the “Line Item Pricing”. “Hit or Click Marketing” will notify the Client of any work that is deemed outside the “‘Line Item Pricing” and will only perform said work upon written approval from Client. Written approval includes, but is not limited to; Email and/or Letter sent via a common carrier service (e.g. USPS, FedEx, UPS).

 

Methods of Contact

 

“Hit or Click Marketing’s” primary method of contact with Client will be via email and telephone on an as-need basis. Telephone and on premise meetings contact other than what is specified in the Scope of Work will be billed at the hourly rate of $150 (one hundred and fifty dollar) per hour in (1/2) hour increments. Client shall designate at least one (1) person within its organization as the primary point of contact for all communications with “Hit or Click Marketing”. Client may change the primary point of contact at any time with proper written notice to “Hit or Click Marketing”.

 

Ownership

 

Notwithstanding anything to the contrary in this Agreement or any other contract, Client will own the website, domain name, design elements, website content, and data associated with the services provided by “Hit or Click Marketing”. “Hit or Click Marketing” retains and shall retain all rights and ownership of, in and to any proprietary software used in connection with the Website. Any third party proprietary software used in the construction of the website shall remain the property of the lawful owner; “Hit or Click Marketing” shall secure licensing for Client usage in accordance with the software licensing agreement.

 

As Client is and will remain the owner of the website, domain name, design elements, content and associated data, Client will be solely responsible for any and all costs associated with the maintenance of the website, and its related services. (e.g. domain renewal, hosting, image licensing, etc.). In the event this agreement is terminated, “Hit or Click Marketing” agrees that it will make commercially reasonable efforts to ensure that Client is provided with any and all relevant info related to the ongoing operation of the website after termination.

 

Availability of Client Staff and Materials

 

Client will make appropriate employees and other resources required to complete this project available to “Hit or Click Marketing” in as timely a manner as possible. Client assumes all liability and responsibility for the accuracy and content of information provided to “Hit or Click Marketing”.

 

Confidentiality

 

“Hit or Click Marketing” shall maintain the confidentiality of all Client information which, at the time of first disclosure to “Hit or Click Marketing”, is clearly identified as “confidential” “Hit or Click Marketing” shall not be required to keep as confidential any information which (a) is, or becomes, publicly known; (b) is already within Hit or Click Marketing’s possession or knowledge at the time of first disclosure; (c) is rightfully obtained from third parties; or (d) after two (2) years from the completion of the Client project from which the information was disclosed.

 

Term, Termination, and Additional Charges

 

Term/Termination

 

This Agreement shall be effective, and shall remain in effect until completion of the project, as contracted, unless otherwise terminated early. Either party may terminate this agreement at any time, subject to certain fees and penalties as set forth herein, by providing written notification to the other party. In the event Client elects to terminate this agreement before the completion of the project, the full contract amount “Line Item Pricing” shall be paid to “Hit or Click Marketing”.

 

Payment For Services Rendered

 

Client shall be responsible for payment to “Hit or Click Marketing” for all Services rendered. Payment may be made via any method specifically approved by Hit or Click Marketing Corp, “Hit or Click Marketing” at the time the payment is to be made.

 

“Hit or Click Marketing” reserves the right to modify its acceptable methods of payment at any time, without notice to Client.

 

Default by Client for Uncured Billing Problem

 

If for any reason the billing information provided by Client becomes invalid, or “Hit or Click Marketing” cannot for any other reason collect payment due in accordance with this Agreement, “Hit or Click Marketing” shall make reasonable efforts to contact the Client in order to give notice of the problem. If Client fails to remedy such problem within five (5) business days of receiving such notice, or if “Hit or Click Marketing” is unable to contact and/or obtain a response from Client within twenty (20) business days after commencing its efforts to contact Client, a material default shall be deemed to have occurred, and “Hit or Click Marketing” may at its sole discretion deem that Client terminated this Agreement, as of the date upon which Hit or Click Marketing Corp, a.k.a. “Hit or Click Marketing” first discovered the problem. Past due fees will accrue interest at an effective rate of 10% APR beginning twenty (20) business days after the original due date.

 

Google AdWordsTerms

 

Client expressly acknowledges they have read, understood, and agree to any and all of the terms provided here and here.

 

Furthermore, Client acknowledges that Google’s terms and conditions for use are subject to change at any time, without notice, and it is Client’s sole responsibility to monitor any changes made by Google.

 

Google AdGrants

 

Client expressly acknowledges they have read, understood, and agree to any and all of the following Program details, Eligibility & charity status, Application form from Google, relative to the AdGrants program. Furthermore, Client acknowledges that Google’s terms and conditions for use are subject to change at any time, without notice, and it is Client’s sole responsibility to monitor any changes made by Google.

 

Objectionable Website and Ad Content or Activities

 

“Hit or Click Marketing” can terminate this Agreement(s) without prior notice or liability if Client maintains, adds, and/or submits objectionable, dangerous, shocking, derogatory, and/or inappropriate content to or for the client’s Website, or uses the development Website in connection with objectionable, dangerous, derogatory,  and/or inappropriate activities. Such objectionable, dangerous, shocking, derogatory, and/or inappropriate includes, but is not limited to:

 

Content related to propagation of conspiracy and/or the suggestion that an individual is or could be the victim of a conspiracy:

Promotions that suggest you may be in danger or be infected with a disease

Hatred against, promotes discrimination of, or disparages an individual or group on the basis of their race or ethnic origin, religion, disability, age, nationality, veteran status, sexual orientation, gender, gender identity, or other characteristic that is associated with systemic discrimination or marginalization

Pornography, hate speech, evidence of illegal activities, etc.

Content that harasses, intimidates, or bullies an individual or group of individuals

Content that threatens or advocates for harm on oneself or others

Content that seeks to exploit others (extortion; blackmail; soliciting or promoting dowries)

Promotions containing violent language, gruesome or disgusting imagery, or graphic images or accounts of physical trauma

Promotions containing gratuitous portrayals of bodily fluids or waste

Content promoting hate groups or hate group paraphernalia; content that encourages others to believe that a person or group is inhuman, inferior, or worthy of being hated

Promotions containing obscene or profane language “Hit or Click Marketing” is the sole decision maker as to content that is objectionable, dangerous, derogatory, and/or inappropriate.

 

Cancellation Fee

 

If Client terminates this Agreement, for any reason, on a date that is more than thirty (30) days after the Effective Date, Client shall pay to “Hit or Click Marketing” a $500 “Cancellation Fee” in addition to any other fees as outlined in this Agreement. This fee is calculated based on time worked according to “Hit or Click Marketing”, and will be due and payable within 10 days of termination.

 

Collection; Processing and Collection Fee

 

Accounts that are not collectable by “Hit or Click Marketing” after 45 days may be turned over to an outside collection agency for collection. If your account is turned over for collection, Client agrees to pay “Hit or Click Marketing” a “Processing and Collection” fee of up to $750. In the event that payment should result in any third-party expenses (such as overdraft charges or banking fees, collection agency fees, postage, etc.), such expenses shall be the sole obligation of the Client. In addition, these past due balances will continue to be subject to the interest rate above.

 

Charge-Back Fee

 

Client acknowledges that “Hit or Click Marketing” does a significant amount of business utilizing credit card service providers, and that “Charge-Backs” against credit card payments cause or have the potential to cause significant damage to “Hit or Click Marketing” and its relationship with current or future merchant service providers. In the event that Client charges back an amount paid to “Hit or Click Marketing” against a credit card, and it is determined that Hit or Click Marketing Corp., a.k.a “Hit or Click Marketing” was entitled to such payment under this Agreement, Client accordingly agrees to pay to “Hit or Click Marketing” a “Charge-Back Fee” of $1,500 as liquidated damages for its additional costs. Client further and specifically agrees that all disputes concerning the propriety of a give charge-back shall be subject to the “Choice of Law and Forum” provisions of this Agreement.

 

Attorneys, Experts and Other Fees

 

In the event of any litigation, arbitration, mediation, etc. between the parties or their representatives, or by a party or its representative before a bankruptcy or similar court that has jurisdiction over another party hereto or over any of such other party’s property or assets, concerning any provision(s) of this Agreement or the rights and duties of any person or entity in relation thereto, “Hit or Click Marketing” shall be entitled, in addition to any other relief, to all reasonable expenses (as determined by the Court) incurred in connection with any successful effort to enforce its rights under this Agreement or to defend against a suit brought by Client (and in any separate action brought for the purpose of recovery under this paragraph), including without limitation all court costs and all reasonable attorneys, accountants, experts, and other professional fees.

 

Release and Indemnity by Client

 

Client to Release and Indemnify “Hit or Click Marketing”

 

Client hereby jointly and severally (1) releases, acquits, forgives, and discharges, (2) assumes full responsibility for, and (3) agrees to indemnify, defend and protect? ?Hit or Click Marketing? from and against, any and all actions, suits, proceedings, investigations, claims, demands, judgments, costs (including without limitation costs of settlement), expenses (including without limitation attorneys fees), and/or liabilities of any kind or nature, whether arising in equity or in law and whether of a civil, administrative or criminal nature, that relate to or arise wholly, partially, or arguably from, out of, or in connection with the Client’s Website and/or any other services performed by “Hit or Click Marketing” for the client.

 

“Hit or Click Marketing” is Not Liable for Incidental, Special or in connection with the Client’s Website and/or any other services performed by “Hit or Click Marketing” for the client.

 

Consequential Damages

 

In no event shall “Hit or Click Marketing” and/or any party affiliated with Hit or Click Marketing Corp, a.k.a. “Hit or Click Marketing” be liable to Client and/or any party affiliated with Client for incidental, special, or consequential damages (including, without limitation those resulting from lost profits, lost savings, lost data or business interruption) arising out of, resulting from, or in any way connected with (i) the performance or breach of this Agreement, and/or (ii) the use, inability to use, inability to access, or the results of use of the Website or any software provided or made available by “Hit or Click Marketing”. This provision shall apply even if “Hit or Click Marketing” has been advised of the possibility of such damages, and regardless of the form or nature of the action or the underlying theory of recovery, including without limitation actions premised on breach of contract, negligence, and/or strict liability.

 

Cap on Hit or Click Marketing Liability

 

The liability to Client and/or any party affiliated with Client of “Hit or Click Marketing” and/or any parties affiliated with “Hit or Click Marketing” for any actions, claims, demands, suits, agreements, judgments, costs, expenses, liabilities, and/or proceedings of any kind, that arises out of, resulting from, or in any way connected with, the performance or breach of this Agreement shall in all events be limited to the amount actually paid by Client for the portion of the services involved. This limitation shall apply regardless of the form or nature of the action or the underlying theory of recovery, including without limitation actions premised on breach of contract, negligence, and/or strict liability.

 

Warranties and Limitations on Warranties

 

In the event that the project fails to meet the mutually agreed upon objectives set forth in this Agreement, Hit or Click Marketing Corp, a.k.a. “Hit or Click Marketing” shall work to correct such failure. Hit or Click Marketing Corp, a.k.a. “Hit or Click Marketing” makes no warranties regarding the estimate of the cost of the work to be performed, the cost of execution of any programs resulting from the services provided, or the compatibility of any program changes or modifications to any software with any planned or future release of Hit or Click Marketing’s software. “Hit or Click Marketing” EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE PARTIES AGREE THAT THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE FOR ANY BREACH OF THIS AGREEMENT, INCLUDING ANY BREACH OF WARRANTY, EXPRESS OR IMPLIED.

 

Miscellaneous

 

Successors and Assigns

 

This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns.

 

Force Majeure

 

Except as specifically addressed by this Agreement, neither party shall be liable for delay in performance hereunder due to causes beyond its reasonable control.

 

The definition of a “Force Majeure” for the purposes of this contract is to mean:

 

  1. a) act of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods, Hurricanes, Tornados.);

 

  1. b) riot, commotion, strikes, go slows, lock outs or disorder, unless solely restricted to employees of Hit or Click Marketing Corp, a.k.a. “Hit or Click Marketing”; or

 

  1. c) acts or threats of terrorism.

 

Non-Waiver

 

No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right. No consent or waiver by a party to this Agreement, whether express or implied, to or of any breach or default by the other party hereto in such other party?s performance hereunder shall be deemed or construed to be a consent to or waiver of any other breach or default in the performance by that other party, whether of the same or any other obligations of that other party. Failure on the part of a party to this Agreement to complain of any act or failure to act of the other party to this Agreement, or to declare that other party in default, shall not constitute a waiver by that party of its rights under this Agreement irrespective of how long that failure continues. The giving of consent by a party to this Agreement in any one instance shall not limit or waive the necessity to obtain that party?s consent in any future instance.

 

Invalidity of Provisions

 

If a court of competent jurisdiction shall adjudge any provision of this Agreement to be void and/or unenforceable as applied to any party or circumstance, the same shall in no way affect or apply to any other provision, any other circumstance(s), and/or the validity or enforceability of the Agreement as a whole.

 

Construction

 

This Agreement shall not be construed against the party preparing it, but shall be construed as if both parties prepared this Agreement.

 

Divisibility

 

This contract is divisible. The work performed in each period during the currency of the contract shall be invoiced separately. Each invoice for work performed in any period shall be payable by the customer in full in accordance with the terms of payment provided for herein, without reference to and notwithstanding any defect or default in the work performed or to be performed in any period.

 

Choice of Law and Forum

 

This Agreement and all issues arising hereunder shall be governed by and construed in accordance with the laws of the State of Florida without regard to its principles of conflicts of law. Any action(s) brought hereunder shall be brought and litigated in the courts of the State of Florida located in the Seminole County. Each party hereto (i) irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds, (ii) irrevocably waives any right of removal to the federal courts or any other system of courts, (iii) irrevocably consents to service of process by mail or in any other manner permitted by applicable law, and (iv) irrevocably consents to the jurisdiction of said courts. Limitation of Actions Against “Hit or Click Marketing”; Repose After One Year

 

This section is present acting as a “gap filler” in the event statute does not property assign a Statute of Limitations to a specific cause of action by Client against “Hit or Click Marketing”. In such an event, any action brought by Client against “Hit or Click Marketing” must be brought within 365 days (1 calendar year) from the date of the breach/cause of action occurred.

 

Notices

 

All notices hereunder shall be in writing. If intended for Client they shall be either delivered personally or sent to the address Client submitted to “Hit or Click Marketing”. If intended for Hit or Click Marketing Corp, a.k.a. “Hit or Click Marketing” they shall be sent registered or certified mail, return receipt requested to the attention of Lucas Ferrer at 3190 Howard Ave, Oviedo FL 32765. Either party may, by appropriate notice, change the address to which notices for it are to be sent.

 

Entire Agreement

 

These terms and conditions, as well as those terms contained “Line Item Pricing” section of the Client Proposal signed by Client represent the entire agreement between the parties relating to the subject matter hereof and supersedes all previous and collateral agreements, representations, statements, warranties, promises and understandings with regard thereto. No representations or statements not expressly set forth herein (including without limitation trade practice, the course of dealing between the parties, and the provisions of any sales literature, proposals or similar documents submitted to Client) shall be binding upon either party as a warranty or otherwise.

 

No Modification; Restrictive Clauses, Legends, Etc. Ineffective

 

No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by an authorized representative of the party to be charged and only to the extent therein set forth. If either party issues a purchase order or other document for the services provided in this Agreement such document will be considered to be for that party?s internal use and any provisions contained therein shall be of no effect. Neither party to this Agreement shall be bound by any restrictive legends on any instrument tendered as payment by the other party.

 

Counterparts

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute a single Agreement to be effective as of the date signed by both parties.

 

Conflicting Terms

 

In the event of conflicting terms between those found in the “Line Item Pricing” section of the Client Proposal and Exhibit A, the terms contained within the “Proposal” section of the Client Proposal are to control.

 

Alternative Dispute Resolution

 

The Parties hereby agree that litigation is not the preferred solution to any disagreement between them. Furthermore, the Parties agree that before an official lawsuit is filed, the parties will make a commercially reasonable effort to settle the issue out of court. This includes, but is not limited to, informal or formal mediation, phone conferences, exchanging of proposed resolutions via email, etc. The Parties may, by mutual agreement, submit any disagreement to binding arbitration in lieu of formal litigation. The terms and conditions of the arbitration are to be set by mutual agreement of the Parties.