Services Agreement

Analytics
Increase your Web Presence
Discover our Branding Strategies
View our 3D Visualizations
Watch our Dynamic Videos

I HAVE READ THE TERMS OF THIS SERVICES AGREEMENT ("AGREEMENT"), WHICH IS PRESENTED ELECTRONICALLY WHEN ACCESSING THE SERVICES. BY CLICKING THE "AGREE/ACCEPT" BUTTON, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT AGREE TO THE TERMS OF THIS LICENSE, CLICK "DISAGREE/DECLINE" AND YOU MAY NOT USE THIS SERVICE.


 

YOU MAY NOT USE THE SERVICES AND YOU MAY NOT ENTER INTO THIS AGREEMENT ON BEHALF OF ANY ENTITY IF YOU OR THE ENTITY IS A PERSON BARRED FROM RECEIVING THE SERVICES UNDER THE LAWS OF THE UNITED STATES OR OTHER COUNTRIES, INCLUDING THE COUNTRY IN WHICH YOU RESIDE OR FROM WHICH YOU UTILIZE PROVIDER'S PRODUCTS AND SERVICES. CLICKING THE "I ACCEPT" BUTTON FOR THIS AGREEMENT ACTS AS A DIGITAL SIGNATURE, CREATING A VALID AND BINDING LEGAL CONTRACT BETWEEN YOU AND PROVIDER.


 

This Agreement is a legal contract made by and between you (the "Customer") and Marketing Alliance, Inc., a Mississippi corporation (referred to herein as "Provider"). Customer is being provided the opportunity to utilize the Services (as defined below) due to Provider's agreement with Licensor (“Licensor Agreement”).


 

     THE PARTIES AGREE AS FOLLOWS:

  1. Provision of Products and Services. Subject to the terms and conditions of this Agreement and the Licensor Agreement, Provider will provide Customer with the use of the Licensor's proprietary real-time Web analytics statistical reporting service, tools and programs designed to enhance a website owner’s ability to monitor and gauge website traffic and visitor interest, volume and other website information (the "Services").

  2. Effective Date. A binding agreement regarding any Provider products or services and Customer's ability to utilize such products and services shall not be effective until such time as this Agreement is accepted and entered into by Customer, Customers accepts and executes Exhibit “A” Service Fees (as referenced in Section 4 below) and Customer provides credit card information for billing purposes (the "Effective Date").

  3. Activation Date of Services. Services will be activated as of the Effective Date. Customer agrees that as of such date, a completed account is automatically generated and the Services are activated with no further action being required on the part of Customer.

  4. Licensor Agreement. Customer acknowledges and agrees that (i) Provider's compliance with all terms and conditions of the Licensor Agreement will govern Customer's access to the Service; and (ii) non-compliance by Provider with all terms and conditions of the Licensor Agreement may result in termination of the Service for Customer.

  5. Service Fees, Payment, Billing, Payment Schedule and Late Fees. In consideration for use of the Services, Customer shall pay to Provider (i) the then current service fees (“Service Fees”) as provided in the Exhibit “A”, which is incorporated into this Agreement by reference: and ii) any usage surcharges (“Usage Surcharge”) in the event that Reseller has page views in excess of the applicable Page View Allotment set forth in the Exhibit “A”. Service Fees are due and payable in full, in advance on a monthly basis, and will be automatically billed to the Customer’s credit card on file unless other payment arrangements have been made. Any Usage Surcharge will be billed on the 1st day of the month following the month in which such Usage Surcharges is incurred and will be automatically billed to the Customer’s credit card on file unless other payment arrangements have been made. Customer will pay a late payment charge of 1% per month, or the maximum amount allowable by law, whichever is greater, on any charges remaining unpaid after the date upon which payment is due.

  6. Agreement Term/Automatic Renewal/Termination for Convenience. This Agreement will commence on the Effective Date and shall continue for one year and shall automatically renew each year thereafter until terminated in accordance with the terms of this Agreement (the "Agreement Term"). Either party may terminate this Agreement for convenience upon written notice of not less than thirty (30) days prior to the expiration of the then current term. Such notice of termination must be received at least thirty days prior to the expiration of the end of the current term to prevent automatic renewal.

  7. Termination. Provider may suspend or immediately terminate any Services or this Agreement upon any breach of the terms of this Agreement (including but not limited to non-payment of fees) by Customer, the expiration of the time period Licensor is obligated to provide the Services as set forth in the Licensor Agreement or Provider's non-compliance with any term or condition set forth in the Licensor Agreement. Customer may terminate this Agreement if Provider breaches this Agreement and if such breach continues for a period of thirty (30) days after Customer gives written notice to Provider and such breach is not cured. Provider shall not have any liability to Customer in the event that any Services are suspended or if this Agreement is terminated for any reason. Upon termination of this Agreement for any reason, Customer shall cease using the Services and any Technology (as defined in Section 12 below) immediately; (ii) return any and all materials provided to Customer by Provider in connection with the Services without Customer retaining any copies thereof; and (iii) provide Provider a written certification signed by an authorized officer certifying that the provision of this Section 6 have been complied with by Customer.

  8. Survival. The following provisions will survive any termination of this Agreement: 6, 7, 10.4, 10.5, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20.

  9. Cooperation. Provider's performance of the Services may depend on cooperation of Customer regarding the Services. If Provider timely notifies Customer in writing clearly stating that a lack of cooperation may, or is causing delay, Provider will not be liable for any failure or delays in performing the Services, to the extent that the failure or delay is caused by Customer's lack of cooperation. Provider may rely upon completeness of documents furnished by Customer, without any independent investigation or verification.

  10. CUSTOMER PROMISES AND OBLIGATIONS. As a condition of receiving any Services, Customer promises, represents and warrants the following:

         10.1 Correct Registration Information. All of the registration information Customer supplies to Provider is true, complete and accurate, and Customer will notify Provider of any changes to Customer registration information during the term of this Agreement and submit updated information within twenty (20) days of any such changes. Such registration information shall include, but not be limited to, Customer name, address, phone number, e-mail address, Website URL(s) and other related information.

        10.2 URL Limitations. None of the URLs Customer submits to Provider link to any Web page or site that contains any:

         (a) hate propaganda or material that encourages or promotes illegal activity or violence;

         (b) content that violates or infringes in any way upon the statutory, common law, or proprietary rights of others, including but not limited to copyrights, trademark rights, patents or any other third party intellectual property, contract, privacy or publicity rights;

         (c) material that promotes or utilizes software or services designed to deliver unsolicited e-mail;

         (d) material that violates any local, state or national law or regulation;

         (e) misrepresentations or material that is threatening, abusive, harassing, defamatory, obscene, profane, indecent or otherwise objectionable, offensive or harmful; or

         (f) other material that Provider, in its sole discretion, deems inappropriate, including any violations of standards posted on Provider's Website or sent to Customer by e-mail.

        10.3 Account Information. Customer will safeguard account information and password by not disclosing it to any third party, and Customer will be liable for any and all harm or liability attributable to Customer or any other person accessing Customer account or any Services with Customer account information and password.

        10.4 No Resale. Customer will not copy, sell, redistribute, license, sublicense, or otherwise transfer Customer account, or any materials provided to Customer in connection with the Services, to any third party without Provider's written consent;

         10.5 Misuse/Reverse Engineering. Customer will make no efforts to misuse the Services or data, including but not limited to reverse engineering of the software/programming/ data, share services with unauthorized parties, use data to hack, spam or illegally manipulate in any way whatsoever, and/or make any modifications or enhancements without Provider's and Licensor's express written consent;

         10.6 Compliance with Law. Customer will comply with all federal laws and regulations governing Customer actions under this Agreement; and

         10.7 Power and Authority. Customer has full power and authority to enter into this Agreement and to perform Customer obligations hereunder.

Without limiting its other remedies, Provider and/or Licensor may refuse or cancel Customer's account or Services at any time for any violation of the foregoing promises or other violations of the terms of this Agreement. To assure compliance with the obligations set forth herein Provider and Licensor each reserve the right, without any obligation, to monitor the content of the Web pages or sites that correspond to the URLs Customer submits to Provider, and in their discretion to terminate Customer's account or any Services based upon its findings.

  1. License. The Services rely on the use of a specific and custom code "snippet" placed in Customer Web page(s) files. Subject to Customer compliance with all the terms of this Agreement, Provider hereby grants to Customer a non-exclusive, revocable, non-transferable, non-sublicenseable worldwide right to use the code supplied to Customer by Provider in connection with the Services (the "Code") solely for Customer's personal or internal business purposes. Customer agrees to follow all instructions and restrictions provided by Provider and/or Licensor with respect to Customer's use of the Services and the Code. In addition, Customer agrees that at the termination of Services or this Agreement for any reason, Customer will cease the use of all Licensor Technology, including, without limitation, removing the snippet from all their Web pages. CUSTOMER AGREES THAT PROVIDER WILL NOT BE RESPONSIBLE FOR ANY MALFUNCTIONS, ERRORS, DATA INACCURACIES OR IMPROPER RESULTS ATTRIBUTABLE TO USE OR LACK THEREOF OF ANY CODE, WHETHER USED CORRECTLY, INCORRECTLY OR BY UNAUTHORIZED OR UNSUPPORTED USE OF ANY CODE.

  2. License Restrictions. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services, any portion thereof or any Code in any way; (ii) modify or make derivative works based upon the Services, any Code or any portions thereof; or (iii) reverse engineer or access the Services or any Code in order to (A) build a competitive product or service, (B) build a product using similar ideas, features, functions or graphics of the Services or any Code, or (C) copy any ideas, features, functions or graphics of any Services. Unless approved by Provider, the rights of any Customer to utilize the Services or Code cannot be shared by Customer.

  3. Ownership. Provider and/or Licensor shall own all right, title and interest, including all related Intellectual Property Rights (as defined below), in and to the Technology (as defined below) or any portion thereof and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Services. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, the Technology or the Intellectual Property Rights owned by Provider and/or Licensor. The Provider name, the Provider logo, and the product names associated with the Service are trademarks of Provider or third parties, and no right or license is granted to use them. For purposes of this Agreement, (i) "Intellectual Property Rights" shall mean unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; and (ii) " Technology" means all of Licensor's and/or Provider’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Provider in connection with the Services.

  4. Indemnification

14.1 Provider Indemnification. Provider will indemnify and hold harmless Customer its subsidiaries and affiliates (and their respective employees, directors, officers, shareholders, attorneys, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees and costs) arising out of any claim, action, audit, investigation, inquiry or other proceeding that arises out of or relates to: (i) any actual or alleged breach of Provider’s covenants, agreements or obligations set forth in this Agreement; and (ii) Provider’s negligent or willful misconduct hereunder.

14.2 Customer Indemnification. Customer will indemnify and hold harmless Provider, its subsidiaries and affiliates (and their respective employees, directors, officers, shareholders, attorneys, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees and costs) arising out of any claim, action, audit, investigation, inquiry or other proceeding that arises out of or relates to: (i) any actual or alleged breach of Customer's covenants, agreements or obligations set forth in this Agreement; (ii) any actual or alleged infringement of any Licensor Intellectual Property or proprietary rights by Customer; (iii) any use of the Technology in a manner not explicitly authorized by this Agreement; (iv) Customer's failure to comply with any applicable laws and regulations in connection with Customer's use of the Services and/or (v) Customer’s negligent or willful misconduct hereunder.

  1. Customer Tracking Data. Provider agrees that all Customer site usage information and statistics, tracking data and Website visitor usage information captured during Customer's use of the Services (the "Service Data") is Customer's property. Customer hereby grants to Provider a world wide, perpetual, fully paid, exclusive license to use, display, or publish the Service Data so long as the Service Data is aggregated with other data gathered from Provider's other customers and no personally identifiable information of Customer will be disclosed in connection with Provider's use, display or publication of the Service Data.

  2. Disclaimer of Warranty. Provider make guarantees of any kind regarding the use or the results derived from any and all Services in terms of dependability, accuracy, security, timeliness, availability, reliability or usefulness. The Services and all related materials, including report data, are provided "AS IS" without warranty or guarantee of any kind. PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES AND RELATED MATERIALS, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACE, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES WILL BE SUITABLE FOR YOUR NEEDS OR YOUR INTENDED APPLICATIONS, OR THAT THE SERVICES WILL BE COMPATIBLE WITH OR OPERATE IN THE HARDWARE, SOFTWARE, OR WEBSITE CONFIGURATIONS THAT CUSTOMER SELECTS.

  3. Limitation of Liability.

         17.1 LIMIT ON CONSEQUENTIAL/SPECIAL DAMAGES. IN NO EVENT WILL PROVIDER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF INCOME, LOSS OR DAMAGE OF DATA, AND DAMAGE TO BUSINESS REPUTATION, ARISING OUT OF OR RELATED TO YOUR USE OF INABILITY TO USE THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE HEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT OR NEGLIGENCE) EVEN IF PROVIDER HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.

         17.2 LIMIT ON DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL PROVIDER OR ITS AFFILIATES' AGGREGATE LIABILITY TO CUSTOMER, OR ANYONE CLAIMING BY OR THROUGH CUSTOMER, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, FOR ANY DAMAGES, LOSSES, CLAIMS AND/OR CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY), WARRANTY OR OTHERWISE, EXCEED THE AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID TO PROVIDER IN CONNECTION WITH SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.

  1. Export Control. The parties acknowledge and understand that the Services and the underlying Technology may be subject to regulation by agencies of the U.S. Government, including the Department of State and Department of Commerce, and/or any foreign government or regulatory body (collectively, "Government Bodies"), which prohibit export or diversion of certain technical products, data or services to certain individuals or countries. Customer agrees and represents and warrants to Provider and Licensor that it will comply with all export regulations and restrictions established by Governing Bodies governing Customer's use of the Services. Customer acknowledges and agrees that the Services shall not be used, and none of the Technology may be transferred or otherwise exported or re-exported to countries as to which the Governing Bodies maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply strictly with all export laws of any applicable Governing Bodies and assume sole responsibility for obtaining licenses to export or re-export as may be required. Provider makes no representation that the Services are appropriate or available for use outside of the United States of America. If Customer uses the Services from outside the United States of America, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.

  2. Contract Electronically. Customer, Provider and Licensor consent to this Agreement being executed and delivered electronically and that Customer's clicking the "I Accept" button accepting this Agreement, constitutes Customer's valid and legally binding acceptance of the terms and conditions of this Agreement. Customer agrees that this Agreement has the same legal force and effect as a written contract with Customer's written signature and satisfy any laws that require a writing or signature, including any applicable statute of frauds. Customer further agrees that Customer shall not challenge the validity, enforceability or admissibility of this Agreement on the grounds that it was electronically transmitted or authorized. In addition, Customer acknowledges that Customer has had the opportunity to print this Agreement.

  3. General Provisions.

         20.1 Entire Agreement. This Agreement constitutes the parties' entire agreement relating to its subject matter. This Agreement cancels and supersedes all prior and contemporaneous oral and written communications between the parties and prevails over any conflicting or additional terms contained in any such document or communication between the parties relating to its subject matter.

         20.2 Consent to Electronic Delivery. This Agreement calls for electronic delivery, including without limitation, delivery by e-mail, of certain notices or other information. Customer, Provider and Licensor hereby consent to the electronic delivery of such items as provided for in this Agreement. Such electronic delivery shall serve as valid delivery for such notices or materials under this Agreement.

         20.3 Force Majeure. Except for the obligation to pay monies due and owing, no party shall be liable for any delay or failure in performance due to events outside the defaulting party's reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, acts of terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay.

         20.4 Notices. Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed given (a) when delivered personally (including by recognized national courier), (b) when receipt is confirmed if sent by facsimile, or (c) three (3) business days after deposited in the U.S. mail, first class mail, registered or certified, with postage prepaid, and addressed to the parties at their principal office addresses or to Customer at the addresses provided by Customer in its registration information.

         20.5 Applicable Law. The laws of the state of Florida govern this Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws.  

20.6 Modification. Except as otherwise provided in this Agreement, no modification to this Agreement shall be effective unless assented to in writing by Customer and Provider. No waiver of any rights, shall be effective unless assented to in writing by the party who is waiving the right, and the waiver of any breach or default shall not constitute a waiver of any other right or any subsequent breach or default.

         20.7 Assignment. The rights contained in this Agreement are of a unique character and, except as specifically set forth herein, may not be assigned in whole or in part by either party without the prior written consent of the other party; provided, however, that either party shall be entitled to assign this Agreement to a successor to all or substantially all of its business or assets, whether by sale, merger, or otherwise who agrees to be bound by all terms and conditions of this Agreement.

         20.8 Severability. Each term, condition, and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. If any term, condition, or provision of this Agreement, or the application thereof to any person or circumstance, shall be held invalid or unenforceable to any extent, then such term, condition, or provision shall be curtailed and limited to the extent necessary to bring it within the legal requirements and the remainder of this Agreement, and the application of such term, condition, or provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby.

         20.9 Attorneys' Fees. Should any litigation, arbitration or other proceeding be commenced between the parties concerning the rights or obligations of the parties under this Agreement, the party prevailing in such litigation or arbitration shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for its attorneys' fees in such litigation, arbitration or other proceeding.

         20.10 Construction. The headings of this Agreement are for convenience only and are not to be considered in construing this Agreement. The language of this Agreement shall be construed according to its fair meaning and not strictly for or against any party.


Exhibit “A” Service Fees:
Customer will pay to Provider $300 per month (“Service Fee”) for the Services.

Page View Allotment: The Service fee includes up to 50,000 page views per month (“the Page View Allotment”). Should Customer have page views in excess of the Page View Allotment during any given month, Customer shall pay an additional $0.50 per thousand page views (“Usage Surcharge”). Such Usage Surcharges will be billed on a monthly basis as provided in the Services Agreement.

The Service Fee and Usage Surcharge Fee are subject to increase upon written notice to Customer.

This Exhibit “A” is incorporated into and governed by the Services Agreement, which Customer has read and agreed to electronically.

John Abbate

President

941.347.7412
.(JavaScript must be enabled to view this email address)
Let us partner with you in attracting business and industry to your community!
Charlotte, North Carolina
725 EAST TRADE STREET, SUITE 200
704.375.0709
Punta Gorda, Florida
126. E. OLYMPIA AVENUE, SUITE 306
941.347.7412
Jackson, Mississippi
1818 CRANE RIDGE DRIVE, SUITE 100
601.713.0045