Terms of Service Agreement – TOSA

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Terms of Service Agreement

This Terms of Service Agreement (“Agreement”) provides the terms and conditions pursuant to which DBA, LLC., an Wisconsin limited liability company, dba (“Business Found Online”) and (“BFO”) will provide certain local search and related Services (defined herein) to Client. As used in this Agreement, “Client” means a natural person or legal entity (such as a corporation, limited liability company, firm, partnership or other entity recognized at law) who subscribes for and receives the Services, together with such person or entity’s affiliates, subsidiaries, successors and assigns.

 

THE SERVICES ARE OFFERED TO CLIENT ONLY UPON THE CONDITION THAT CLIENT ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY RECEIVING OR USING ANY OF THE SERVICES, IN WHOLE OR IN PART, CLIENT AGREES TO ENTER INTO THIS AGREEMENT. A CONTRACT IS THEREBY FORMED BETWEEN BFO AND CLIENT WITH RESPECT TO THE SUBJECT MATTER HEREIN.

  1. Services. In consideration of the promises of Client set forth herein (including without limitation Client’s payment of the consideration for the Services as herein provided), BFO will provide Client with one or more services in one or more of the following categories: (i) local search marketing, SEO (Search Engine Optimization); (ii) paid search marketing; (iii) social media management; and (iv) Web content generation (including email marketing). Unless Client purchases a multi-location subscription, Services shall correspond to one unique geographic location, which shall be designated and agreed-upon during the sign-up process. Services for separate locations will increase fees payable by Client hereunder. In connection with the delivery of the Services, BFO may or not provide Client with access to detailed reporting digital marketing services provided using its online proprietary reporting portal (“Dashboard / Presence portal”).
  2. Term; Authorization. BFO will provide the Services to Client on a month-to-month basis. A one-time set up fee and the first term installment payment is due to BFO on sign-up via credit card payment. Installment payment amounts are subsequently billed and collected for the upcoming month as provided herein. Clients that require check payments are billed quarterly in advance. Client authorizes BFO to act on Client’s behalf as Client’s local search marketing partner during the term of this Agreement and all renewal terms, with respect to all Services provided by BFO hereunder. Such authorization includes the right to post, publish and edit Client’s Web business profile information and Internet and social media advertisements and (where elected by Client) to post content to such profiles, advertisements or campaigns.
  1. Copyright. Ownership of content generated by BFO in connection with the Services transfers from BFO to Client only after payment in full by Client of all invoices applicable to such content. BFO’s Presence portal and any methods of optimization disclosed by BFO to client cannot be copied or used by Client except as expressly contemplated by this Agreement in connection with the Services, and any such right shall terminate upon termination of this Agreement unless expressly authorized in writing by BFO. Client acknowledges that, at BFO’s expense, a domain name may be registered and hosted with a microsite created for Client in furtherance of delivery of the Services hereunder. The microsite and related domain are integrated into BFO’s proprietary digital marketing system and shall remain the property of BFO and shall not be transferable to Client.
  2. Fees and Payment. As consideration for the Services, Client agrees to pay a one-time set-up fee and the periodic subscription fees associated with the Services requested by Client and identified during the sign-up process. Subscription fees are subject to modification by BFO at any time, upon written notice to Client. Canadian clients are subject to periodic pricing changes to reflect changes in the exchange rate; If Client chooses to pay in a currency other than U.S. dollar (USD), a conversion may be imposed at the time of payment based on applicable exchange rates. Additional fees may be charged by Client’s credit card or bank for cross border transactions. None of these additional fees are received by BFO, and BFO shall not be liable for any portion of such additional fees.

As a digital marketing agency, most of our products and services are online and are recurring for our clients; therefore we are only sending estimates & invoices via E-mail. We also encourage our customers to process their payments electronically through our secure payment gateway. All payments from Client for the Services shall be made in immediately available funds, in U.S. Dollars, by credit card (Visa, MasterCard or American Express) or automatic checking account withdrawal (“ACH”). BFO may retain and store Client’s payment information, including but not limited to, credit card number and expiration date or ACH account and routing information. Due to the nature of the Services, all sales for each periodic Services period are non-refundable. BFO is authorized to charge the subscription renewal fee for upcoming periodic Services to the credit card or ACH account provided to BFO by Client. Client may change its billing information on 30-days written notice to BFO. Invoices, where requested by Client for quarterly ACH payments, shall be delivered solely by e-mail to Clients e-mail notice address provided to BFO during the sign-up process.

 

Credit Card customers must prepay for one month in advance and will be billed monthly in advance of the Services being provided thereafter.

 

Failure by Client to maintain valid and current payment arrangements with BFO may result in interruption or cancellation of the Services. Such interruption does not relieve Client of the obligation to pay for Services already provided to Client by BFO. If BFO is, or becomes, required by law to deduct or withhold any taxes (including without limited to sales taxes, use taxes, ad valorem taxes, or similar charges or assessments) from amounts due to BFO from Client, then all amounts due from Client shall be increased so that the net amount actually received by BFO after deduction or withholding of any such tax, charge or assessment will equal 100% of the agreed-upon charges.  A $10.00 or 10% late payment fee whichever is greater will be assessed on any unpaid balance remaining after 15 days for recurring services. A $10 or 10% late payment fee whichever is greater will be assessed on any unpaid balance remaining after 30 days for website design & development projects.

  1. Termination.

(a) This Agreement and any renewal subscription arising hereunder may be terminated by Client by delivery to BFO of Client’s intention not to renew at least five days prior to the end of the then-current periodic subscription term. Any termination notice received later than five days prior to the end of the current subscription term shall be effective immediately following the next applicable renewal term.

(b) BFO may terminate this Agreement and/or suspend all or any portion of the Services at any time, without notice to Client, in the event Client fails to maintain valid payment information with BFO, or in the event that Client fails to pay for the Services.

(c) Either party may terminate this Agreement immediately in the event that the other party becomes insolvent, or the other party makes an assignment for the benefit of creditors, or the other party does not pay its debts as they become due or admits its inability to pay its debts when due, or the other party files or has filed against it a petition under any provisions of the Bankruptcy Act or an application for a receiver, trustee or custodian is made with respect to such Party.

(d) BFO may terminate this Agreement on at least 60-days written notice to Client in the event that BFO should determine that it will cease providing the same type of Services to all other eligible Clients that were receiving such Services as Client.

(e) Upon any termination of this Agreement for any reason, Client shall discontinue any use, retention, display or distribution of any of the work product or materials provided to Client by BFO hereunder (including without limitation, BFO’s trademarks and the Reporting System) and delete from all storage servers and devices all such work product or materials received under this Agreement. Upon termination of this Agreement, BFO shall return to Client, delete or destroy (in BFO’s sole and absolute discretion) all Client Data (defined herein) provided by Client during the term of this Agreement.

  1. Client Data; License.Client is responsible for providing BFO with current and accurate data necessary for BFO to provide the Services. As used herein, “Client Data” shall include, without limitation, client’s website domain name and URL, Client’s business name, address, telephone number(s), facsimile number(s), e-mail address(es), social media and website content subject matter, ideas and concepts, artwork and other printed material or data submitted by Client to BFO to enable BFO to provide the Services hereunder. Client hereby grants BFO a royalty-free license during the term of this Agreement and all renewal terms to use the Client Data for purposes of providing the Services.
  2. Client Representations and Warranties.Client represents and warrants to BFO that: (a) Client owns or has all requisite rights, licenses and permissions to submit the Client Data to BFO for the use contemplated by the Services; (b) the use by BFO of the Client Data for the purposes of providing the Services hereunder does not, and will not, infringe any intellectual property or other rights of any third party or the laws, rules, regulations, orders or treaties of any governmental authority or jurisdiction; (c) the Client Data does not, and will not, infringe upon any trademark, copyright, contract or property rights of any third parties and that Client has paid any and all royalties or other charges to be paid pursuant to the copyright law of the United States, any statute, order or other law, right or contract governing the Client Data; (d) the Client Data does not, and will not, contain any materials which are libelous, defamatory, obscene, or invades the rights of privacy or other rights of any individual; (e) Client has all necessary power and authority to enter into and perform in accordance this Agreement; (f) this Agreement is legal, valid, binding and enforceable against Client; and (g) neither the execution of, nor performance under, this Agreement by Client violates or will violate any law, rule, regulation or order, or any agreement, document or instrument, binding on or applicable to Client.
  3. Client Indemnification.Client shall indemnify, defend and hold harmless BFO, together with its members, officers, directors, employees, agents, contractors and permitted assigns from and against any and all third party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) directly or indirectly arising from or in any way connected with: (i) the lawful use of or reliance by BFO on the Client Data in performing the Services under this Agreement, (ii) any breach of or default under the terms, conditions, representations or warranties of this Agreement by Client, or (iii) any negligence, gross negligence or willful misconduct by or on behalf of Client or its employees or agents.
  4. Express Limited Warranty; Limitations on Liability.

(a) Limited Warranty. BFO shall provide the Services under this Agreement in a professional manner, consistent with generally-accepted standards applicable to the marketing industry in which the Services subside. Due to periodic changes in search engine algorithms and accessibility of open source citations, BFO cannot guarantee search engine result pages or line placement where Client’s business will appear.  Client acknowledges that BFO has no control over the change to search engine policies or algorithm changes. At any time, Client’s website may lose rankings or be excluded from any search engine at the sole discretion of the search engine. Client acknowledges it’s website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory.

(b) Representations and Warranties Limited. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE SERVICES ARE PROVIDED “AS-IS” AND BFO DOES NOT MAKE ANY WARRANTY, REPRESENTATION OR GUARANTY AS TO THE AVAILABILITY, ACCURACY, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY OF THE SERVICES OR OTHER DATA, REPORTS OR INFORMATION FURNISHED TO CLIENT HEREUNDER. FURTHERMORE, THE SERVICES MAY BE SUBJECT TO TRANSCRIPTION AND TRANSMISSION ERRORS. THE EXPRESS WARRANTY SET FORTH IN PARAGRAPH 8(a) IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES, EXPRESS OR IMPLIED, AND ALL SUCH OTHER WARRANTIES, REPRESENTATIONS, AND GUARANTIES ARE HEREBY DISCLAIMED. ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM ANY COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXPRESSLY DISCLAIMED.

(c) No Authority to Modify. No employee, salesperson, vendor or other agent or purported agent of BFO is authorized to make any warranties, representations or guaranties to the contrary of the foregoing, and any such purported warranties, representations or guaranties shall not be relied upon as having been given by or on behalf of BFO. Furthermore, Client acknowledges that it is the responsibility of Client to verify any information upon which it or any of its employees or agents use, rely on or otherwise take action upon with respect to financial or other consequences.

(d) Limitations on Liability. If BFO fails to perform its duties and obligations under this Agreement, and Client can establish that as a direct result thereof, Client has incurred any damages, liabilities, losses, fees, costs or expenses, then BFO’s liability to Client for actual damages for any cause whatsoever, during the term of this Agreement, whether in contract, tort (including negligence), strict liability or otherwise, shall not exceed in the aggregate the fees that Client has paid for the Services in question during the subscription term in question. IN NO EVENT SHALL BFO OR ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOSS OF PROFIT OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES SUSTAINED OR INCURRED BY CLIENT OR ANY THIRD PARTY IN CONNECTION WITH THE SERVICES, ANY ACTION ANY OF THEM TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS CLIENT SENDS TO BFO OR THE DELAY OR INABILITY TO USE ANY SERVICES, OR BFO’S REMOVAL, MODIFICATION, SUSPENSION OR DELETION OF ANY SERVICES PURSUANT TO ITS RIGHTS UNDER THIS AGREEMENT, IN ALL CASES, REGARDLESS OF THE FORM OF THE ACTION AND WHETHER SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND EVEN IF BFO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR AN ACTION FOR NON-PAYMENT BY BFO, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS OCCURRED.

(e) Search Engine Guideline Penalties. Client shall inform BFO of any past or future marketing plans implemented or to be implemented by Client so that BFO may factor such plans into its planning for the Services hereunder. BFO shall not be responsible for any search engine guideline penalties caused by Client’s marketing plans, whether or not disclosed to BFO.

  1. Confidential Information.

(a) Definition. For purposes of this Section 10, “Confidential Information” of a Disclosing Party shall mean and include any information, written or oral, which relates to such Disclosing Party’s business, products, processes or services that is specifically designated as “Confidential Information” by such Disclosing Party or that constitutes “trade secrets” pursuant to the Uniform Trade Secrets Act as adopted in the State of Wisconsin, USA. Notwithstanding the foregoing, the following shall not constitute Confidential Information: (a) information that was already known to the receiving party prior to disclosure or is later made public by or for the Disclosing Party on an authorized basis; (b) information obtained or readily ascertainable from the general public; (c) information received from a third party not known to be employed by or affiliated with the disclosing party; (d) information that was independently developed by the Receiving Party without reference to Confidential Information; and (e) information which is or becomes known to the general public other than through a breach of this Agreement. Client acknowledges and agrees that BFO may share information about BFO’s customers and basic information about Client’s listing and statistical summary data with prospective customers for the purpose of marketing BFO’s services. The terms of this Agreement, along with BFO’s pricing, software and technical documentation related to the Services shall be deemed Confidential Information regardless of any lack of designation.

(b) Duties. Each party (a “Receiving Party”) shall treat all Confidential Information, tangible and intangible, received by it in connection with this Agreement that pertains to the other party (a “Disclosing Party”) as confidential and proprietary information of the Disclosing Party, will not make any such Confidential Information available to any other person (except a subcontractor or contractor/affiliate who has also agreed to provisions substantially similar to those set forth in this Section 9), will use reasonable care to protect such Confidential Information from theft, loss, misuse and disclosure and will not use such Confidential Information except for Receiving Party’s benefit in connection with this Agreement. Each Receiving Party will, to the extent reasonably possible, return to the Disclosing Party all Confidential Information on termination of this Agreement. If a Receiving Party is ordered by law to disclose Confidential Information, such Receiving Party may do so, but only to the extent required by applicable law or process and only after first giving the Disclosing Party prompt written notice of that order.

(c) Remedies. The Parties acknowledge that the Confidential Information is of a special and extraordinary character, and that any breach of this Section 9 will cause a Disclosing Party irreparable injury and damage, and so each Disclosing Party will be entitled, in addition to all other legal or equitable remedies available to it, to injunctive relief to prevent, cease or otherwise redress that breach.

  1. Miscellaneous.

(a) Assignment. Client may not assign any of its rights or obligations under this Agreement, by operation of law or otherwise, without first obtaining BFO’s written consent, except that Client may assign this Agreement without BFO’s consent (i) to an affiliate (controlled by or under common control with, Client); or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Subscriber’s assets not involving a direct competitor of BFO; provided that Client provides prompt written notice to BFO of such assignment. Any permitted assignment by Client shall not modify the terms hereof, including without limitation, the specific geographic location applicable to the Services. Any attempt to assign Client’s rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.

(b) Notice. Except as otherwise provided in this Agreement, any notice to Client that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon transmission when sent by e-mail or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, to the address provided by Client in the sign-up materials provided to BFO in connection with entering into this Agreement or to such other address as provided in writing by Client to BFO for such purposes. Except as otherwise provided in this Agreement, any notice to BFO that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by e-mail to: [email protected] or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, such as Federal Express or equivalent, to: DBA, LLC., P.O. Box 692, Spencer, WI 54479, Attn: Legal Notice. Upon receipt, if a valid e-mail address is provided and remains current, BFO may give notice to or communicate with Client by e-mail addressed to the persons identified in the sign-up process or to such other e-mail address or persons as Client shall hereafter specify by prior written notice. By providing an e-mail address, Client agrees that any receipt received by BFO from Client’s service provider or Internet computer server indicating that the e-mail was received shall be deemed proof that Client received the message. If Client cannot see or print all or a portion of a message, Client agrees that it is Client’s responsibility to contact BFO to resolve such technical issues.

(c) Force Majeure. Due performance of any duty or obligation hereunder by BFO hereunder shall be excused if prevented by acts of God, information providers or other service providers, public enemy, war, terrorism, any accident, explosion, fire, storm, earthquake, flood, strike, computer outage or virus, telecommunications failure or any other circumstance beyond or event BFO’s reasonable control. Client acknowledges that BFO has no responsibility for or control over search engines or Internet database partner(s) usage of customer data in fulfilling Internet search queries or any particular placement of any information from Client as a result of a search or query on any third party Website. Client further acknowledges that BFO has no responsibility for, or control over, third party social media content requirements or rules applicable thereto.

(d) Severability. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason, then the validity, legally or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, the parties waive any provisions of law that render any provision of this Agreement invalid, illegal or unenforceable in any respect.

(e) Waiver or Consent. Any failure by either of the Parties to comply with any obligation, covenant, condition or agreement contained herein may be waived in writing by the party entitled to the benefits thereof, but such waiver or failure to insist on strict compliance with such obligation, covenant, condition or agreement shall not operate as a waiver of or estoppel with respect to any subsequent or other failure. To be effective, any consent by BFO must be in writing and signed by an authorized representative of BFO.

(f) Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes and replaces all prior writings or oral negotiations or other understandings with respect thereto.

(g) Independent Parties. Nothing in this Agreement shall be construed as creating a partnership, joint venture, fiduciary or (except as expressly set forth in Section 2) agency relationship between the parties, or as authorizing either party to act as an agent for the other. The parties to this Agreement are independent parties.

(h) Governing Law; Forum for Disputes. This Agreement and all terms and conditions included or incorporated by reference herein shall be governed by and interpreted in accordance with the laws of the State of Wisconsin applicable to agreements made and wholly performed therein. Client hereby consents to the exclusive jurisdiction of the federal and state courts of competent jurisdiction located in Clark County, Wisconsin for the adjudication of any disputes arising out of or relating to this Agreement or Client’s access to or use of the Services. Client hereby waives any objection to venue or inconvenient forum laid therein.

(i) In order to meet changes in search engine guidelines or other factors impacting Web and social media content optimization and marketing trends, BFO may revise this Agreement at any time by updating this posting and providing Client with written notice of such update. Client should visit this page from time to time to review the current Agreement, which shall continue to be binding on Client in its revised form.

 

TOSA: 7.2018

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