This Master Service Agreement (“MSA”), by and between Conversion Metrics, LLC, a New Jersey limited liability company (“Conversion Metrics”) and Client covers business transactions that Conversion Metrics and Client may enter into from time to time.
NOW, THEREFORE, the parties hereto agree as follows: DEFINITIONS Client: The party entering into the MSA with Conversion Metrics. Statement of Work, Service Agreement, and Insertion Order (“SOW”): Sets forth a description and the cost, of specific Goods and/or Services to be performed, or provided, by Conversion Metrics. A separate SOW may be executed for different Goods and/or Services.
Goods: Any products, including hardware, firmware or software licenses sold, licensed or otherwise provided to Client.
Services: Work performed by Conversion Metrics.
1. ENGAGEMENT Client hereby engages Conversion Metrics, and Conversion Metrics hereby accepts such engagement, to perform certain services as described in the Statement of Work (SOW). From time to time, Conversion Metrics and Client may agree upon additional services to be performed that shall be agreed upon in one or more SOWs. Client is responsible for providing Conversion Metrics with the necessary items and information specified in any SOW. Any SOW that makes reference to the MSA shall be subject to and governed by the MSA.
2. TERMS OF PAYMENT Unless otherwise provided by an SOW, any payment due shall be due upon receipt of the invoice. Payments shall be considered past due seven (7) days after the invoice date. Amounts paid after such date shall bear interest at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less). In the event of any failure by Client to make payment, Client shall be responsible for all reasonable expenses (including attorneys’ fees) incurred by Conversion Metrics in collecting payment under the MSA. If any sales, use, value-added, privilege or other tax or charge is now or hereafter imposed or assessed by any governmental entity upon the sale, use or receipt of services, Client agrees to pay such taxes or charges when invoiced by Conversion Metrics. All payments are non-refundable. Client agrees to pay Conversion Metrics a $35.00 fee for each returned check, charge back, or stop payment. Client acknowledges that its payment obligation on payment schedules as outlined in the SOW and not on the amount of traffic delivered or Client’s ability to convert traffic to leads or sales. Any payment discrepancy must be communicated in writing to info (at) conversionmetrics.org by the Third (3rd) calendar day of each month for the prior month’s service, otherwise costs associated are considered valid.
3. TERMINATION 3.1 Client Elected Termination – Client may terminate any SOW at any time with written notice to info (at) conversionmetrics.org. If Client terminates any SOW, Client will be responsible to pay costs associated with the SOW for up to thirty (30) days after Conversion Metrics’s receipt of Client’s written notice of cancellation.
3.2 Termination for Nonpayment – Conversion Metrics shall have the right to terminate any or all SOW(s) and/or suspend its services upon three (3) days’ prior written notice to Client if any Conversion Metrics invoices remain unpaid thirty (30) days after the invoice date. Conversion Metrics agrees to perform services up to the effective date of termination or suspension and Client agrees to pay Conversion Metrics for services performed up to the effective date of termination or suspension.
3.3 Termination for Bankruptcy – Conversion Metrics shall have the right to terminate any or all SOW(s) if Client ceases to do business as a going concern, makes an assignment for the benefit of Creditors or any proceeding commenced by or against Client under any bankruptcy law in any Jurisdiction.
3.4 Termination for Breach – Either party shall have the right to terminate any SOW and/or the MSA upon three (3) days written notice in the event of a material breach by the other party. For purposes of this section, any amounts due by Client that are left unpaid for more than thirty (30) days from the date of invoice shall be deemed to be a material breach.
3.5 Unilateral Service Revocation – In the event that Conversion Metrics may at any time believe that the service is being utilized for unlawful purposes by the Client or in contravention with the terms and provisions herewith, Conversion Metrics may immediately discontinue such service to the Client without liability.
4.1 Service Description – Conversion Metrics and its hosting partners provide hosting servers which are integrated into the Internet for use by Client. These servers shall send and receive information in relationship to the World Wide Web. If stipulated in the SOW, Client wishes to connect to the World Wide Web utilizing the hardware and software resources of Conversion Metrics to establish an Internet web presence on one of Conversion Metrics’s servers.
4.2 Domain Name – If Conversion Metrics shall acquire an Internet Domain Name on behalf of the Client, then in such case the Client hereby waives any and all claims which it may have against Conversion Metrics for any loss, damage, claim or expense arising out of or in relation to the registration of such Domain Name in any on-line or off-line network directories, membership lists or registration lists, or the release of the Domain Name from such directories or lists following the termination of the providing of this service by Conversion Metrics for any reason.
4.3 Down Time – If any evidence of downtime is presented and proven to be due to system difficulties on Conversion Metrics’s behalf, then the Client will be credited for the amount of the downtime on a prorated system accordingly with their monthly billing. If however the downtime is due to an outside source other than Conversion Metrics no compensation will be made.
5. TIMELINES AND PROJECT DELIVERABLES The SOW may list timelines for the completion of the work as well as interim delivery dates for the project deliverables. All the delivery dates specified in the SOW are dependent on the timeliness of delivery of materials and information by the Client.
In the event materials or information are not delivered in a timely manner, the specified delivery dates are automatically extended by the number of days in which such materials or information are late. In the event that Conversion Metrics becomes unable to deliver the project on the completion date because of events outside of Conversion Metrics’s control, or if, Client after execution of the MSA and the SOW orders or requests additional work, options, or changes, then a new completion date shall be provided by Conversion Metrics at its sole discretion.
Client shall pay any additional fees and costs created by Client or Client’s failure to timely provide information, materials, or deliverables required under the MSA or SOW. Conversion Metrics may at its sole discretion treat the failure of Clients to timely deliver any required materials as a material breach.
6. TRAVEL AND RELATED COSTS If any of the services to be provided under the SOW are to be provided at Client’s facilities, then Client shall in advance of services performed, pay reasonable expenses for accommodations, travel and such other reasonable costs as are incurred by Conversion Metrics in connection with the provisions of such Services. Conversion Metrics shall provide to Client in advance its best effort to estimate the costs. Client shall pay Conversion Metrics for such additional reasonable amounts in advance as shall be due for such expense or Conversion Metrics shall reimburse Client for any over payment.
7. COMPLIANCE WITH GOOD BUSINESS PRACTICES Client shall use its best efforts to maintain its website in full compliance with all applicable laws, ordinances and regulations and will hold harmless, protect, and defend Conversion Metrics and its independent contractors from any claim, suit, penalty, tax, or tariff arising from Client’s use of Internet electronic commerce. All advertising and promotion by Client contained in Client’s website shall be completely factual and shall conform to the highest standard of ethical advertising.
8. INTELLECTUAL PROPERTY RIGHTS 8.1 Conversion Metrics Ownership Rights – Except to the extent provided in the SOW or the MSA, nothing shall be construed as an assignment or grant to Client of any right, title, or interest in or to any trademark, service mark, trade name, copyright, patent, trade secret, or other intellectual property owned by Conversion Metrics (the “Conversion Metrics Intellectual Property”). Use of the Conversion Metrics Intellectual Property by Client here under shall inure to the benefit of Conversion Metrics, and any and all equities, rights, or secondary meanings in and to the Conversion Metrics Intellectual Property resulting from Client’s acts or endeavors shall automatically transfer to Conversion Metrics upon the termination of the SOW. Client shall not adopt any imitations of or confusingly similar substitutes for the Conversion Metrics Intellectual Property. Client shall not, during the term of the SOW or any time thereafter, attack, dispute, or contest, directly or indirectly, Conversion Metrics’s exclusive rights, title, and interest in or to the Conversion Metrics Intellectual Property or the validity of Conversion Metrics’s registrations thereon, nor shall Client assist or knowingly aid others to do so. Client shall cooperate with Conversion Metrics in preventing infringement of the Conversion Metrics Intellectual Property and aid Conversion Metrics in all reasonable respects to protect its rights in and to the Conversion Metrics Intellectual Property. The technologies used in the development of each deliverable, software, module, is proprietary to Conversion Metrics and Client may not re-sell, re-distribute, reverse engineer, edit, view, or re-use for any purpose such technologies.
8.2 License – Client hereby grants to Conversion Metrics a worldwide, nonexclusive, nontransferable license to use Client’s trademarks, service marks, trade names, Internet domain names, trade dress, and logos (“Trademarks”) to the extent necessary to perform its obligations in accordance with the SOW. Further, Client agrees that Conversion Metrics may refer to Client and may briefly describe Client’s business in Conversion Metrics’s marketing materials and on Conversion Metrics websites. Title to and ownership of Client’s Trademarks shall remain with Client.
9. DISCLAIMER / NO WARRANTEE Due to the complex nature of the Internet, computer hardware and software, except whereby otherwise provided herein, Conversion Metrics disclaims all warranties, express or implied including, without limitation, warranties of merchantability and fitness for a particular purpose. Conversion Metrics, including but not limited to its officers, agents, employees, and independent contractors shall have no liability for special, indirect, or consequential damage, or for any loss of profit or disruption in business, including Client’s website, systems or applications. Conversion Metrics shall have no liability for unauthorized access, loss, alteration, theft or destruction of the Client’s website or data files. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to Client. Client further understands, acknowledges, and agrees to the following:
9.1 Conversion Metrics has no control over the policies and practices of search engines with respect to the type of sites and/or content that they accept now or in the future. Client’s site may be excluded from any directory or search engine at any time at the sole discretion of the Search Engine or Directory. Conversion Metrics makes no representations or warranties that any of the work or services performed under the SOW will result in inclusion of the search engine.
9.2 Due to the competitiveness of some keywords/phrases, ongoing changes in search engines ranking algorithms, and other competitive factors, Conversion Metrics does not guarantee any particular ranking or position for any particular keyword, phrase, or search term.
9.3 Conversion Metrics does not control the time frame for any submissions or acceptance of submissions to any search engine or directory. At times search engines and directories will cease accepting submissions for an indefinite period of time. Therefore, Conversion Metrics does not guarantee or warrant the submission or acceptance of submission of any search engine or directory.
9.4 The acceptance of any advertisement by any search engine or directory is entirely at the sole discretion of the search engine or directory.
9.5 Client shall be solely responsible for the content of Client’s website and shall indemnify and hold Conversion Metrics harmless against any and all claims, liabilities, or damages, including attorney fees, arising from the content of Client’s website.
10. INFRINGEMENT CLAIMS If content created or utilized in connection with the development of Client website becomes the subject of a claim of infringement or misappropriation of a patent, copyright, trademark, or property right of a third party, Conversion Metrics shall use its best efforts to: a) Promptly replace such content with compatible non-infringing content, or b) Promptly modify the content to make it non-infringing without materially impairing the ability to use the content as intended. Any obligations Conversion Metrics may have under the MSA or SOW shall cease upon either Termination of the SOW, or upon expiration of any warranty. Conversion Metrics represents, but does not warrant, that to the best of its knowledge all output delivered to Client under the SOW will not infringe on any valid and existing intellectual property right of third parties.
11. LIMITATION OF LIABILITY In no event shall Conversion Metrics’s liability related for any of the services performed under the SOW, exceed the total fees paid to Conversion Metrics for such services. Conversion Metrics shall not in any event be liable for any direct, indirect, special, incidental, or consequential damages for loss of business profits, business interpretation, loss of business information, or other pecuniary loss, even if Conversion Metrics has been advised of the possibility of such damages. This limitation of liability allocates the risks under the SOW between Conversion Metrics and Client, and Conversion Metrics’s pricing reflects this allocation of risk and the limitation of liability specified in this section.
12. INDEMNIFICATION Client shall indemnify, defend, and hold Conversion Metrics, its officers, directors, stockholders, employees, agents, and representatives harmless for, from, and against any claims, losses, costs, damages, expenses, or liabilities to third parties, including, without limitation, any governmental agencies (including, without limitation, reasonable attorneys’ fees) arising out of or resulting from (a) the performance or nonperformance by Conversion Metrics of any obligation or agreement of Conversion Metrics under any SOW or MSA; (b) any misrepresentation made in any SOW or MSA; (c) the performance of its duties here under; or (d) with respect to any products or other liability claims made by third parties regarding any products or services ordered or delivered through, or any information posted by Client or on Client’s websites, whether intentional or unintentional. Notwithstanding anything contained herein to the contrary, this indemnification shall survive the termination of any SOW or MSA.
13. CLIENT REPRESENTATIONS Client represents as follows:
13.1 All text, graphics, artwork, design, logos or photos as supplied by Client are supplied with proper permission, licensing and Client has the right to use said materials.
13.2 Any work supplied by Client does not infringe on any copyright, patent, or trademark. Client will defend, indemnify and hold Conversion Metrics and its independent contractors harmless from any and all claims including costs and attorney’s fees arising out of the use of materials supplied by Client in connection with services performed under any SOW or MSA.
13.3 Client gives permission to Conversion Metrics to refuse at any time to print or place on the website any artwork or any kind that Conversion Metrics in its sole and absolute discretion, believes is an invasion of privacy, degrading, libelous, unlawful, obscene, in bad taste, or which in the sole judgment of Conversion Metrics is an infringement on a trademark or copyright belonging to others; provided that Conversion Metrics shall have no affirmative obligation to review the website for any such infringement.
13.4 Client acknowledges that Conversion Metrics does not profess expertise in the Client’s area of business.
13.5 Client agrees to provide the following:
- FTP access for the site which Conversion Metrics is providing services.
- Where FTP access is not possible, Client agrees to provide an e-mail address of a technician who can upload requested changes on a timely basis. Conversion Metrics cannot be held responsible for delays once the technician has been notified of the upload request. A copy of the request will be sent to Client.
- Access to all search engine marketing accounts that Conversion Metrics requires to perform the services under any SOW.
- Access to raw log files or existing statistical reporting to facilitate website traffic reporting.
- Access to view site analytics.
- Access to call tracking software if applicable.
13.6 If Conversion Metrics determines, in its sole discretion that Client’s existing website does not contain sufficient content for purposes of search engine optimization services, Client will provide additional relevant text content in electronic format for the purpose of creating additional web pages or increasing the content on existing pages. If this content is not or cannot be provided, Client further agrees to allow Conversion Metrics to modify keyword density, positioning, and other search engine optimization related aspects of the content without restriction or liability and Client may incur pre-approved costs associated with this effort.
13.7 Client agrees that no onsite SEO work shall be performed on Client’s website during the optimization process without prior authorization from Conversion Metrics. Conversion Metrics shall not be responsible for delays, costs, or errors attributable to unauthorized changes to the website during the term of any SOW.
14. GENERAL LEGAL PROVISIONS
14.1 Amendment and Waiver – Except as otherwise expressly provided herein, Conversion Metrics reserves the right to revise any SOW and the MSA from time to time without notice. Conversion Metrics also reserves the right to modify the manner by which the Service is delivered. Any new feature added to an existing SOW shall be subject to the MSA. Continued use of the Service after any such changes shall constitute Client consent to such changes. Client will find the most current MSA on: ClickCaster Mater Service Agreement Date: 08/09/2016.
14.2 Entire Agreement – The MSA and any SOW incorporated by reference herein is a complete and exclusive statement of all the terms and conditions of the agreement among the parties with respect to the subject matter hereof. The MSA and any SOW incorporated by reference herein supersedes and terminates any previously existing negotiations, understandings, and agreements that may exist between the parties. The MSA and any SOW incorporated by reference herein shall not be varied, supplemented, qualified, or interpreted by any prior course of dealing between the parties hereto or by any usage of trade.
14.3 Indulgences, Not Waivers – Neither the failure nor any delay on the part of a party to exercise any right, remedy, power, or privilege under the MSA or any SOW hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise of the same or of any other right, remedy, power, or privilege, nor shall any waiver of any right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power, or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.
14.4 Assignment – Client may not assign any of its rights or obligations under the MSA or any SOW without the prior written consent of Conversion Metrics. Any assignment in contravention of this provision shall be void. Conversion Metrics reserves the right to utilize independent contractors to fulfill any part of an SOW.
14.5 No Third Party Beneficiaries – The MSA and any SOW shall inure solely to the benefit of and be binding upon Conversion Metrics and Client and their respective successors and permitted assigns and no other person shall have any right, remedy or claim under or by reason of the MSA.
14.6 Independent Contractor – Conversion Metrics acknowledges and agrees that it is an independent contractor and that under the MSA and any SOW neither Client nor Conversion Metrics shall be considered for any purpose to be the agent, partner, franchisor, franchisee, or joint venture of the other. Neither Client nor Conversion Metrics shall have any obligation or responsibility to act on behalf of or in the name of the other, or the power or authority to bind the other in any manner whatsoever. Any representation to the contrary by Client or by Conversion Metrics, or the employees or agents of either, shall be sufficient grounds for the termination of any SOW.
14.7 Confidentiality – Conversion Metrics and Client agree to retain in confidence all information transmitted to it by the other party pursuant to the MSA and any SOW (1) that the disclosing party identifies in writing as being proprietary and/or confidential, or (2) that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”). The parties shall not make use of such Confidential Information except pursuant to the terms and during the existence of the MSA and any SOW. Neither party shall disclose to any third person any Confidential Information without the express written consent of the other party. “Confidential Information” does not include information that is:
(a) already in the possession of the receiving party or is known by the receiving party at the time of receiving the same, without breach of any duty owed to the disclosing party;
(b) publicly known through no wrongful act of the receiving party;
(c) rightfully received from a third party provided the receiving party complies with any restrictions imposed by any such third party;
(d) disclosed by the receiving party pursuant to a requirement of a court order, governmental agency, or other applicable law or regulation or disclosed in connection with any dispute resolution under the MSA or any SOW; or
(e) developed by the receiving party independently from the activities pursuant to the MSA or any SOW.
14.8 Non-Solicitation – Client agrees that during the term of any SOW and for a period of twenty four (24) months following termination, they shall not directly or indirectly:
(i) hire or employ any of Conversion Metrics’s employees, independent contractors, vendors, or staff;
(ii) hire or employ any former employee, independent contractor, vendor or staff unless they have not been employed or contracted by Conversion Metrics for at least two (2) years;
(iii) make an offer to employ or solicit any of Conversion Metrics’ employees, independent contractors, vendors or staff to terminate their employment or agreement; or
(iv) solicit or receive any services from Conversion Metrics’ employees, independent contractors, vendors or staff, excluding the services such employees, independent contractors, vendors, or staff are rendering to Client pursuant to the MSA or any SOW.
14.9 Jurisdiction – The MSA and any SOW shall be deemed to be made, entered into and accepted in Middlesex County, New Jersey and the MSA and any SOW shall be governed by the laws of the State of New Jersey. Any legal suit or action, including but not limited to rescission, which involves or names Conversion Metrics, shall and may only be commenced and maintained in the Courts in Middlesex County, New Jersey, which such courts shall have exclusive Jurisdiction. Client expressly submits to the jurisdiction and venue of the Courts of New Jersey and waives all rights to trial by jury for any suit against Conversion Metrics or any potential counterclaim against Conversion Metrics.
14.10 Severability – If any provision of the MSA or any SOW is found to be illegal or unenforceable, then, notwithstanding such finding, the MSA and any SOW shall remain in full force and effect and such provision shall be deemed stricken or modified to the minimum extent necessary to make it enforceable; provided, however, that the intent of the parties when entering into the MSA or any SOW is maintained.
14.11 Notice – Notice shall be in writing to the address set forth hereinabove and properly given: (i) immediately, if delivered in person, via facsimile, or electronic mail; (ii) after one (1) day, if sent by overnight courier; or (iii) after five (5) days, when sent by first class U.S. Mail.
14.12 Force Majeure – None of the parties hereto will bear any responsibility or liability arising out of any delay or interruption of their performance of obligations under the MSA or any SOW due to any act of God, act of governmental authority, act of the public enemy, or due to war, riot, flood, civil commotion, insurrection, labor difficulty, severe or adverse weather conditions, lack or shortage of electrical power, malfunctions of equipment or software programs or any other cause beyond the reasonable control of the party delayed.
14.13 Section Headings – The section headings contained in the MSA or any SOW are for reference purposes only and shall not affect in any way the meaning or interpretation of the MSA or any SOW.
14.14 Representative Capacity – Each party who signs the SOW in a representative capacity represents and warrants that he or she is authorized to execute any SOW and the MSA on behalf of the person or entity on whose behalf his or her signature is affixed.
14.15 Binding Arbitration – Any controversy between the parties regarding the construction, application, or performance of any services under the MSA and any SOW, and any claim arising out of or relating to the MSA and any SOW or its breach, shall be submitted to binding arbitration upon the written request of any one party after the service of that request on the other party. The parties shall be subject to and use the rules promulgated by the American Arbitration Association. The cost of the arbitration, excluding legal fees and costs, shall be borne by the losing party or in such proportion as the arbitrator shall decide. The sole and exclusive venue for the arbitration and or legal dispute shall be Middlesex County, New Jersey.
14.16 Counterparts – The MSA and any SOW may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.