This Agreement is hereby entered into between Iconix Marketing, LLC and the Client as named and dated in the Client portion of this Agreement.
1. Iconix Marketing, LLC will maintain the confidentiality of Client’s source materials, technical and marketing plans and all other sensitive information.
2. Iconix Marketing, LLC and Client agree that any dispute arising out of this Agreement shall first be resolved by mediation, if possible. This Agreement was entered into in Montgomery County in the State of Texas, and any necessary arbitration or litigation will take place in this county.
3. Upon full payment of all invoices due, copyright to designs produced by Iconix Marketing, LLC for Client shall belong to Client. Secondary materials created by Iconix Marketing, LLC during production, including but not limited to products purchased for the completion of this Agreement, drafts, plans, graphic source files, and templates, remain the sole property of Iconix Marketing, LLC unless other arrangements are made.
4. Client is solely responsible for the editorial, pictures, graphics, or video content of the material included on its website. Accordingly, Client agrees that it will defend and indemnify (hold harmless) the Iconix Marketing, LLC from any suit, demand, or claim resulting from the editorial content of the website.
5. Client represents to Iconix Marketing, LLC and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Iconix Marketing, LLC for inclusion in Client’s website are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect and defend Iconix Marketing, LLC, its subcontractors, or third party vendors from any claim or suit arising from the use of such elements furnished by the Client or Iconix Marketing, LLC.
6. Iconix Marketing, LLC will not be liable to Client or to any third party for any damages arising from the use of this website.
7. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
8. Iconix Marketing, LLC, if requested, agrees to attend meetings with client(s) or third party consultant(s) during the design process provided the meeting location is within a 50 miles of Harris County and due notice is given 2 or more business days before meeting.
9. Iconix Marketing, LLC disclaims all warranties, expressed or implied, including without limitation, any and all warranties of merchantability, fitness for a particular purpose and non-infringement, in connection with this Agreement.
10. Product Availability. Under no circumstances shall Iconix Marketing, LLC be responsible to the client or anyone else for its failure to fill accepted orders, or for its delay in filling accepted orders, when such failure or delay is due to strike, accident, labor trouble, acts of nature, freight embargo, war, civil disturbance, vendor problems or any cause beyond Iconix Marketing, LLC reasonable control.
11. Indemnification by the client. The client shall indemnify and hold Iconix Marketing, LLC free and harmless from any and all claims, damages or lawsuits (including reasonable attorneys’ fees) arising out of negligence or malfeasant acts of the client, its employees or its agents.
14. The Iconix Marketing, LLC and the Client agree to hold in good standing each other’s, reputations, present business standing, and goodwill under its present ownership. Both Iconix Marketing, LLC and the Client agree that its rights and obligations under this Agreement may not be transferred or assigned directly or indirectly. Subject to the foregoing, this Agreement shall be binding to the benefit of the parties hereto, their successors and assigns.
15. Payment Authorization. I authorize Iconix Marketing, LLC to make charges to my Credit / Debit Card, and if necessary, to initiate adjustments for any transactions credited or debited in error. This authority will remain in effect until Iconix Marketing, LLC, has received written notification from the Client to cancel payments. Notice must be received by Iconix Marketing, LLC at least 30 days prior to the recurring charge date in order to cancel the next payment.
16. Payment is due or automatically withdrawn from the Client’s credit card or checking account each month of service and/or when scheduled. The Client agrees to pay Iconix Marketing, LLC the fees specified in this Agreement. All fees must be received prior to the start of any services provided. Any form of non-payment will be considered a breach of this Agreement.
17. Late Payments and Non-Payments. Late payment or non-payment of an invoice or any kind for services will result in the account in which the service was purchased to be immediately placed on hold, all work will be placed on hold and all associated services in the account are placed on hold until payment is made. If an invoice exceeds more than 30 days delinquent this Agreement shall be considered fulfilled in full by Iconix Marketing, LLC with no sign-off required, and no refunds given
18. Charge backs & Dispute Resolution. In the event of the cancellation of this assignment by the Client, the Iconix Marketing, LLC will invoice the Client for the greater of either: (1) all work completed up to the date of notification, based upon the percentage of the project finished, including expenses; or (2) 50% of the agreed-upon estimate plus expenses, and this Agreement shall be considered fulfilled in full by Iconix Marketing, LLC. All work will remain the property of Iconix Marketing, LLC. All payments already made will first be applied to these charges. When Iconix Marketing, LLC receives a charge back notice, bounced check or non-payment of any kind for our services, the account in which the service was purchased is immediately blocked, and all associated services in the account are terminated. Iconix Marketing, LLC always considers charge back notice, bounced check or non-payment to be the result of fraud and results in the immediate termination of all services related to the charge back. This is the best way to protect the Iconix Marketing, LLC and the public from harm.
19. Agreement Termination. Iconix Marketing, LLC has the right to terminate Agreement at any time during the design process if, for any reason, client terminates communication for more than 45 days, steals or otherwise infringes on others intellectual property, violates copyright or trademark laws, violates local or federal laws or displays any disorderly conduct. If this occurs, Iconix Marketing, LLC will not issue any refund of the deposit amount. Client agrees to pay for all services rendered by Iconix Marketing prior to the date this Agreement is terminated. Any unpaid balances will be due thirty (30) days after termination.
20. Client Agreement Termination. Client has the right to terminate Agreement at any time during the design process if Iconix Marketing, LLC is unable to work on project for more than 45 days due to illness, injury, disability or hospitalization.
21. The Client understands that each project is different and that a particular project may take more labor hours than other projects with similar features, styles, and the complexity. The labor hours estimated to complete this project are based on past experience and every attempt will be made to complete the project within that estimate, within reason. It is impossible to determine with certainty the number of hours that will be needed to complete this project. Any amounts estimated in this Agreement for the Iconix Marketing, LLC’s services are merely estimates.
22. Price Adjustments. The Client understands that the complexity of any project can change and the estimates in this Agreement are not a guarantee of the total fees required to conclude the project. If this project exceeds the number of hours estimated in this Agreement, a per hour rate of $46, charged in minimum 15 min increments, will be charged to the client for the completion of the project and will be billed with the Final payment.
23. Authorization. The Client is engaging Iconix Marketing, LLC as an independent contractor for the specific purpose of Internet Marketing and/or Web Design. The Client hereby authorizes Iconix Marketing, LLC to access the Client’s FTP account and/or hosting account to make changes to the Client’s website, and for any other use deemed necessary by Iconix Marketing, LLC for the purpose of internet marketing. Iconix Marketing, LLC retains the right to access these accounts up to 1 year after the conclusions of this Agreement.
24. SEO Service Scope. Iconix Marketing, LLC will search engine optimize the Client’s website for the following search engines: Google, Yahoo and Bing. Iconix Marketing, LLC will provide additional marketing services at the Client’s request or when Iconix Marketing, LLC’s account manager deems additional marketing necessary. Additional services may include, but are not limited to: website development, pay-per-click management, comparison shopping management, conversion rate optimization, and/or sales optimization.
25. Additional Expenses. Client agrees to reimburse Iconix Marketing, LLC for any Client requested expenses. Examples may include: a. Purchase of specific fonts, b. Purchase of specific images(s), c. Purchase of specific software or plugins, d. Submission to a paid directory. This may be evidenced by e-mails confirming the requested expenses.
26. Third Party or Client Page Modification. Some Clients will desire to independently edit or update their website during and after the campaign. If the Client or an agent of the Client makes changes to their website, without prior written approval from Iconix Marketing, LLC, then Iconix Marketing, LLC will not be responsible for any lost positions, website banning, or any other damages which may occur to the Client.
27. Additional Content. It may be necessary for Iconix Marketing, LLC to add content, images, or other media to the Client’s website or to third party websites on behalf of the Client. Client agrees not to hold Iconix Marketing, LLC liable in any way for any content, images, or other media added to their website or to any other third party website. If the Client finds an error or inaccurate information online, the Client must notify Iconix Marketing, LLC or the third party for the removal and/or correction of any inaccurate information.
28. Copyrights and Trademarks. Client authorizes Iconix Marketing, LLC to use all Client logos, trademarks, website text or images, etc., for use in making changes, creating additional pages, and any other use deemed necessary by Iconix Marketing, LLC for internet marketing services. The Client represents to Iconix Marketing, LLC and unconditionally guarantees that all text, images, videos, designs, trademarks, or other media furnished to Iconix Marketing, LLC is owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Iconix Marketing, LLC from any claim or suit arising from the use of such elements furnished by the Client.
29. Guarantees. Iconix Marketing, LLC has no control over the policies of search engines and any third party websites with respect to the type of websites and content they accept now or in the future. The Client’s website may be excluded from any search engine or third party website at any time, at the sole discretion of the search engine or third party. Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Iconix Marketing, LLC cannot guarantee an increase in positions for any particular keyword, phrase, or search term. Iconix Marketing, LLC cannot guarantee that the Client’s website will not lose any search engine positions as a result of services provided. Iconix Marketing, LLC cannot guarantee additional sales or traffic to Client’s website.
30. Limitation of Liability. In no event shall Iconix Marketing, LLC, its employees, officers, or directors be liable in contract, tort, strict liability, warranty or any other theory of liability, for any special, indirect, incidental or consequential damages, of any nature, including but not limited to delay, disruption, loss of product, loss of profits or revenue, loss of position, website being banned, loss of use of the equipment or system, non-operational or increased expense of operation of other equipment or systems, cost of capital, or cost of purchase or replacement of equipment systems or power, even if such party shall have been advised of the possibility of such damages. In no event shall Iconix Marketing, LLC be liable to Client or any other third party for any damages in excess of the amounts paid or due to Iconix Marketing, LLC hereunder. In no event shall either party be liable for punitive damages.
31. Laws Affecting Electronic Commerce. From time to time governments enact laws, levy taxes, and tariffs affecting internet, electronic commerce. The Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, indemnify, and defend Iconix Marketing, LLC from any claim, suit, penalty, tax, or tariff arising from the Client’s exercise of internet, electronic commerce.
32. Communications with Client. Client agrees to allow Iconix Marketing, LLC the right to provide unsolicited and continued communications with the Client both during and after this Agreement, either by way of e-mail, mail, or telephone. This will enable Iconix Marketing, LLC and its affiliates to continue an on-going relationship with the Client including providing updated information on services, etc.
33. Solicitation of Iconix Marketing, LLC Employees or Independent Contractors. During the term of this Agreement, and for one (1) year thereafter, Client shall not; (a) offer employment to or employ any Iconix Marketing, LLC employee or independent contractor either full-time or part -time; (b) hire or offer to hire any Iconix Marketing, LLC employee or independent contractor as a consultant, intern, trainee, or the equivalent of Client, to provide service or products having the same general nature as those provided by Iconix Marketing, LLC to its clients under this Agreement. The Client shall not request, cause, or induce Iconix Marketing, LLC employees or independent contractors to breach any Agreement between the employee or independent contractor and Iconix Marketing, LLC Essentials; and the Client shall not request, cause, or induce the employee or independent contractor to leave the employ of Iconix Marketing, LLC Essentials.
34. Duration. The minimum duration of this Agreement shall be for no certain term. If Iconix Marketing, LLC does not receive a 10 day written notice of cancellation, Iconix Marketing, LLC will continue to provide the services specified herein for the Client on a month-to-month basis and Client agrees to continue paying the rate(s) specified in this Agreement. All terms of this Agreement shall continue to remain in force.
35. Payment Guarantee. By accepting this Agreement, the Client, in his/her individual capacity, jointly and severally unconditionally guarantees and promises to pay to Iconix Marketing, LLC all indebtedness of the Client at any time arising under or related to any services requested through this Agreement, as well as any additions, changes or adjustments to this Agreement. Client, (i) will pay Iconix Marketing, LLC costs and attorneys’ fees in enforcing this guaranty; (ii) this guaranty will be governed by Texas Law; and (iii) this guaranty shall benefit Iconix Marketing, LLC and it’s successors and assigns; and (iv) an electronic signature or a facsimile of the Client’s signature, in any capacity, may be used as evidence of Client’s Agreement to the terms of this guaranty.
36. Entire Agreement. The parties understand and expressly agree that (i) this Agreement terminates and supersedes all prior understanding or Agreements on the subject matter hereof, (ii) this Agreement constitutes the entire Agreement between the parties relative to the subject matter hereof, and (iii) there are no representations, warranties or Agreements, either express or implied or oral or written, except as set forth herein. This Agreement may be modified only in writing executed by both parties that specifically indicates it is amending this Agreement.
37. Construction. The language used in this Agreement will be deemed the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against either party.
38. Waiver. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
39. The Client hereby authorizes Iconix Marketing, LLC to charge the indicated credit card for services provided and applicable excess usage fees. The Client agrees that this is a periodic charge that will be made according to my billing cycle and that to terminate the recurring billing process I must either cancel my account, or arrange for an alternative method of payment. The Client understands that all account cancellations must be made in writing according to the requirements of this Agreement, which The Client has read and understood. I will not dispute Iconix Marketing, LLC’s recurring billing with my credit card issuer so long as the amount in question was for service rendered prior to my canceling my account in the manner required by this Agreement.