Services. Profound Strategy LLC (“Provider”) shall provide to the customer (the “Customer”) identified on Provider’s quotation (the “Quote”) the services set forth on the Quote (the “Services”). The Quote, together with these Terms and Conditions, sets forth the complete agreement (the “Agreement”) relating to the Services. Any changes to the scope of Services must be agreed by the parties in a written amendment in accordance with this Agreement. Customer shall respond promptly to any Provider request for information or approvals that Provider requires to perform the Services. Given the at-times unpredictable nature of search engine optimization, any statements, testimonials, discussions, stated goals, and examples on the Provider’s website, in sales material, or in any other provided materials do not guarantee that the Customer will achieve any specific results. The Provider has no control over the policies and ranking algorithms of search engines now or in the future. Customer’s website rankings may change without explanation and may be excluded from any search engine at any time at the sole discretion of the search engine.
Payment Terms. In consideration of the provision of the Services by the Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Quote on the schedule set forth in the Quote. Customer shall pay all invoiced amounts due to Provider in accordance with the payment terms set forth in the Quote, with no right of setoff. All payments hereunder shall be in US dollars. If Customer fails to timely pay an invoice, Provider may (a) charge interest on unpaid amounts at a rate of 1.5% per month or the maximum amount permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) suspend performance for all Services until payment has been made in full. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind, if applicable, imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder except for any taxes imposed on, or with respect to, Provider’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
Warranties. Provider shall provide the Services (a) in accordance with the terms and subject to the conditions set forth in this Agreement; (b) using personnel of required skill, experience, licenses, and qualifications; and (c) in a timely, workmanlike, and professional manner. Nothing in this Agreement shall prevent Customer from performing for itself or acquiring from other providers the same or similar services, nor prevent Provider from providing the same or similar services to other customers (subject to confidentiality and intellectual property obligations set forth below). EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION, PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Non-Renewable Line Item. Any non-renewable line item in Quotes occurs once, doesn’t renew.
Term. The Agreement shall commence as of the date agreed upon by Provider and Customer and shall continue thereafter for the period set forth in the Quote (the “Initial Term”), unless sooner terminated pursuant to this section. Any Services identified as renewable in the Quote shall automatically renew for successive terms equal to the Initial Term unless either party provides the other party with written notice of its intent not to renew at least thirty days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). The terms and conditions of this Agreement during any Renewal Term shall be the same as those in effect at the time of renewal.
Cancellation. Customer may cancel Services at any time. Customer must provide at least 60 days’ notice of any cancellation. All cancellations shall take effect on the first of each calendar month following expiration of the 60-day notice period.
Adding/Removing Services Mid-Term. Customer may remove Services at any time, provided that the monthly cost of all removed Services does not exceed 20% of the total monthly cost of Services that Customer was subscribed to at the beginning of the then-current Term. Customer must notify Provider of the Services to be removed by the 5th of each calendar month for those Services to end on the 1st of the next month. Customer may add additional Services at any time.
Rate Increases. Provider may notify Customer of a rate increase for the next Renewal Term. This notification must be given by Provider not fewer than sixty days prior to the end of the then-current Term. Customer may then provide notice of its intent not to renew within 30 days after notification of the cost increase. (This is in addition to the notice Customer may give to not renew in the provision in “Term” paragraph.) Provider may not increase the cost of the Services more than once per twelve-month period.
Termination. Either party may terminate the Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty days after receipt of written notice of such breach; (b) becomes insolvent; (c) admits its inability to pay its debts generally as they become due; (d) becomes subject to any bankruptcy proceeding which is not dismissed or vacated within thirty days after filing; (e) is dissolved or liquidated; (f) makes a general assignment for the benefit of creditors; or (g) has a receiver, trustee, custodian, or similar agent appointed by court order to take charge of or sell any material portion of its property or business.
Confidentiality. All non-public, confidential or proprietary information of either party (“Confidential Information”), including, but not limited to, information about such party’s business affairs, products, services, methodologies, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned by the Receiving Party in connection with this Agreement, and whether or not marked, designated, or otherwise identified as “confidential,” is confidential, solely for use in performing this Agreement and may not be disclosed or copied unless authorized by the Disclosing Party in writing. The Receiving Party shall protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Agreement; (b) is obtained by the Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) the Receiving Party establishes by documentary evidence, was in its possession prior to the Disclosing Party’s disclosure hereunder; (d) was or is independently developed by the Receiving Party without using any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction. At any time during or after the term of this Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Each party’s obligations under this section will survive termination or expiration of this Agreement for a period of two years, except for Confidential Information that constitutes a trade secret under any applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret under such law.
Intellectual Property. Except as set forth herein, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Provider in the course of performing the Services (collectively, the “Deliverables”) shall be owned exclusively by Customer. All Intellectual Property Rights in all documents, data, know-how, methodologies, software, and other materials provided by or used by Provider in performing the Services and developed or acquired by the Provider prior to or independently of this Agreement (collectively, “Pre-Existing Materials”) shall be owned exclusively by Provider and its licensors. Provider hereby grants Customer a limited, non-transferable, non-sublicensable, non-exclusive license to use, display and reproduce any Pre-Existing Materials to the extent incorporated in or otherwise necessary for the use of the Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Provider.
Indemnification. Provider shall defend, indemnify, and hold harmless Customer from and against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and costs, incurred by Customer in a final, non-appealable judgment based on a claim that any of the Services or Deliverables or Customer’s receipt or use thereof infringes any Intellectual Property Right of a third party arising under the laws of the United States; provided, however, that Provider shall have no obligations under this section with respect to claims to the extent arising out of (a) any instruction, information, designs, specifications, or other materials provided by Customer to Provider; (b) Customer’s use of the Deliverables in combination with any materials or equipment not supplied to Customer or specified by Provider in writing; or (c) any modifications or changes made to the Deliverables other than by Provider.
Third Party Services. The Services may require use of applications or services provided or made available by third parties (“Third Party Services”). In order to use a feature in connection with a Third Party Service, Customer shall comply with all applicable terms. Provider disclaims all warranties, indemnities, obligations, and other liabilities in connection with any interface or integration with the Third Party Service.
Data. Provider does not require for the performance of the Services, and Customer shall not provide to Provider, any information relating to an identified or identifiable individual. Provider collects, analyzes, and uses aggregated, de-identified technical data, analytics data, and related information to provide the Services and improve Provider’s products and services.
Non-Solicitation. During the Term and for a period of two years thereafter, neither party shall, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under this Agreement who is then in the employ of the other party. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this section, and the hiring of any employee or independent contractor who freely responds thereto shall not be a breach of this section. If either party breaches this section, the breaching party shall, on demand, pay to the non-breaching party a sum equal to one year’s basic salary or the annual fee that was payable by the claiming party to that employee, worker, or independent contractor plus the recruitment costs incurred by the non-breaching party in replacing such person.
Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from events outside of the party’s reasonable control (“Force Majeure Events”), including but not limited to: (a) acts of God; (b) flood, fire, earthquake, epidemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The affected party shall resume performance under this Agreement as soon as reasonably practicable after the Force Majeure Event has been resolved or terminated.
Governing Law & Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the state or federal courts in the State of Wisconsin, and each party irrevocably: (a) submits to the exclusive jurisdiction of such courts; (b) waives any objection to such courts based on venue or inconvenience; and (c) waives any right to trial by jury. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
Limitation of Liability. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR: (A) ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) DIRECT DAMAGES OF MORE THAN THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PROVIDER IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Assignment. Customer may not assign, transfer, or delegate any or all of its rights or obligations under this Agreement, including by operation of law, change of control, or merger, without the prior written consent of Provider. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Severability. No invalidity, illegality, or unenforceability of any provision herein in any jurisdiction, shall affect any other term or provision of this Agreement or invalidate or render such provision unenforceable in any other jurisdiction. If any provision is determined to be invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible.