Terms and Conditions
Engagement. Client, by its execution hereof, engages HVAC Marketing Xperts as an independent consultant to perform the services outlined in the proposal on the reverse side of these Terms and Conditions of Service (“Terms and Conditions”). These Terms and Conditions, together with the terms and provisions contained on the reverse side of the Terms and Conditions, are hereinafter referred to collectively as the “Agreement.”
Term. This Agreement shall become effective on the date accepted by HVAC Marketing Xperts on the reverse side of this Agreement and continue on a month-to-month basis thereafter. This Agreement may be terminated immediately by HVAC Marketing Xperts if (i) Client fails to pay any fees as and when due hereunder, or (ii) Client ceases to cooperate with HVAC Marketing Xperts or otherwise makes it difficult for HVAC Marketing Xperts to perform the services contracted hereunder, or (iii) HVAC Marketing Xperts discovers that Client is utilizing its website for any purpose that violates federal, state or local law.
Fees and Payments. During the Term, Client agrees to pay in full when due the monthly fees for the service selected by Client on the reverse side of this Agreement. The first monthly fee shall be due upon acceptance of this Agreement by HVAC Marketing Xperts. All subsequent monthly fees under this Agreement shall be due on the same calendar day of each successive month (i.e., if the Agreement is accepted on May 10, subsequent monthly fees payments shall be due on June 10, July 10, etc.). Client acknowledges and agrees that any fee not paid within ten (10) days after its due date shall bear interest at the rate of 1.5% per month from such tenth (10th) day until paid. Once paid, all fees shall be nonrefundable. HVAC Marketing Xperts reserves the right, at any time and from time to time, to increase the monthly and other fees charged by HVAC Marketing Xperts for the services provided hereunder upon forty-five (45) days’ prior notice to Client.
General Changes. Unless otherwise provided in the Proposal, client is allowed three design changes to the initial design. Client shall pay additional charges for changes in excess of the three design requests or after sign off of design, at HVAC Marketing Xperts standard hourly rate of $75.00 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or ﬁnal price identiﬁed therein.
Substantive Changes. If Client requests or instructs Changes that amount to a revision in or near excess of 50 percent (50%) of the time required to produce the Deliverables, and or the value or scope of the Services, HVAC Marketing Xperts shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by HVAC Marketing Xperts
Timing. HVAC Marketing Xperts will prioritize performance of the services as may be necessary or as identiﬁed in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identiﬁed in the Proposal. Client agrees to review Deliverables within the time identiﬁed for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufﬁcient to identify the Client’s concerns, objections or corrections to HVAC Marketing Xperts. HVAC Marketing Xperts shall be entitled to request written clariﬁcation of any concern, objection or correction. Client acknowledges and agrees that HVAC Marketing Xperts ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or HVAC Marketing Xperts obligations under this Agreement.
Client Authorization. Client authorizes HVAC Marketing Xperts to (i) access without limitation Client’s website to analyze its content and structure; (ii) to alter Client’s website as necessary or desirable in HVAC Marketing Xperts sole and absolute discretion for purposes of search engine optimization, and for any other purpose agreed to by Client and HVAC Marketing Xperts; (iii) upload such pages and content to the Client’s website as HVAC Marketing Xperts deems appropriate in its sole and absolute discretion for purposes of search engine optimization; (iv) make use of all of Client’s logos, trademarks, copyrights, website images and similar items to create informational pages and for other uses deemed necessary by HVAC Marketing Xperts to provide the services subscribed for hereunder; and (v) communicate with third parties as HVAC Marketing Xperts deems necessary in its sole discretion to perform HVAC Marketing Xperts services hereunder, including but not limited to Client’s web designer.
Client Consent to Installation of Telephone Tracking Number. Client consents to the placement of a telephone tracking number on Client’s website and on off-site videos, and further consents to the recording of all telephone calls that are routed through the telephone tracking number. Client understands that the telephone tracking number will remain on the Client’s website and embedded in Client’s off-site videos during the agreement Term. Within a reasonable time after the termination of this Agreement, the telephone tracking number will be removed from Client’s website, but will remain on Client’s off-site videos. Client may request that Client’s off-site videos be removed by HVAC Marketing Xperts, but understands that HVAC Marketing Xperts will not separately remove the embedded tracking number from Client’s off-site videos, even upon termination of this Agreement. At the termination of this Agreement, and provided that Client has paid in full all of the fees due hereunder, including any interest due on the fees payable hereunder, Client will port the telephone tracking number to Client at no cost to HVAC Marketing Xperts. Upon termination of this Agreement, Client shall have sixty (60) days from the effective date of termination to move its website to another website host. If Client has not, by the end of such sixty (60) day period, moved its website to a new website host, HVAC Marketing Xperts shall have the authority and right, without notice to or the consent of Client, to remove Client’s website from HVAC Marketing Xperts server, with no liability to HVAC Marketing Xperts for such removal.
Hosting & Email Management – Client understands that HVAC Marketing Xperts will host their website on our server but not their email. If client requires a solution to manage and maintain email accounts (HYPERLINK “mailto:[email protected]”[email protected]) then they can set that up with their IT provider or HVAC Marketing Xperts will recommend a provider to configure their email account(s) for them at an additional fee paid to that provider directly. If at some point in the future our agreement ends and the client wants to move in a different direction they have 3 options for transition their site:
- Client can pay HVAC Marketing Xperts $50 per month to continue hosting on the HVAC Marketing Xperts server.
- Client can contract with our recommended provider SiteGround to implement their website with a hosting provider of their choice.
- If client has an IT provider that understands how to transition the website, we will provide a complete backup that they can use at no additional charge.
Client Acknowledgments. Client makes the following acknowledgments: (i) that HVAC Marketing Xperts cannot control or exert influence over the policies or operations of any search engine companies or any other third parties regarding the content of the sites that are accepted by the search engine companies or other third parties; (ii) that HVAC Marketing Xperts will not be responsible for any changes or alterations to Client’s website made by Client or any third parties that negatively impacts the rankings or visibility of Client’s website; (iii) that because the results of the services to be provided by HVAC Marketing Xperts hereunder depend upon a number of factors outside of HVAC Marketing Xperts control, HVAC Marketing Xperts cannot guarantee the results of its services to Client; (iv) that because the utilization of certain keywords and key phrases are very competitive, and because search engines are constantly changing search engine ranking algorithms, HVAC Marketing Xperts cannot guarantee that Client’s website will achieve the highest search result position in any search engine or consistent search result positions in the top rankings; (v) that certain search engine companies may affect the rankings of new and/or unproven companies (for example, “sandboxing”); (vi) that search engines will, from time to time, drop listings without specific causes; and (vii) that while HVAC Marketing Xperts shall use commercially reasonable diligence to promptly submit and/or effect a change in rankings of Client’s website, some search engines may take several months or longer to list and/or effect a change in rankings. With all that being said, HVAC Marketing Xperts guarantees that if there are no positive rankings for any of client’s target keywords in the first 3 months of service, client may exit the agreement term and is entitled to a 40% refund on their investment.
Force Majeure. HVAC Marketing Xperts shall not be liable for, nor considered to be in breach under this Agreement due to, delay or failure to perform under this Agreement as a consequence of any conditions that are beyond HVAC Marketing Xperts reasonable control after exercising commercially reasonable efforts.
DISCLAIMERS OF LIABILITY. IN ADDITION TO ANY DISCLAIMERS OF LIABILITY FOUND ELSEWHERE IN THESE TERMS AND CONDITIONS, HVAC MARKETING XPERTS SHALL NOT BE LIABLE TO CLIENT FOR INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, LOST PROFITS, WHETHER FORESEEABLE OR BASED ON BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY OR NEGLIGENCE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED IN THIS AGREEMENT. HVAC MARKETING XPERTS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR THIRD PARTY CONTENT OF, OR SOFTWARE, EQUIPMENT OR HARDWARE OBTAINED FROM, ANY THIRD PARTIES. HVAC Marketing Xperts will not be responsible for results due to any alterations or overwrites made to a website by another party, as Client understands that this can adversely affect the search engine rankings of Client’s website(s), nor for the effect of Client linking to any particular websites without the prior consultation and approval of HVAC Marketing Xperts.
Client Representations and Warranties; Indemnity. Client represents and warrants to HVAC Marketing Xperts the following: (i) that Client owns the URL listed on the reverse side of this Agreement; and (ii) that Client owns or has the absolute and unrestricted right to use and to grant to HVAC Marketing Xperts the right to use all graphics, photos, designs, intellectual property and artwork, and any element or elements thereof, that Client furnishes to HVAC Marketing Xperts. Client indemnifies and holds harmless HVAC Marketing Xperts and HVAC Marketing Xperts owners, officers, directors and employees from and against any and all liabilities, costs and expenses (including but not limited to reasonable attorneys’ fees and costs incurred at trial, appeal or other legal proceeding) arising out of or with respect to any breach by Client of any of the foregoing representations and warranties, or the breach of any representations and warranties contained elsewhere in this Agreement, and/or the failure by Client to comply with any covenant of Client contained in this Agreement. If Client is a company, the individual signing this Agreement represents and warrants that the execution of this Agreement has been authorized by all necessary action of the Client, and that the undersigned has full authority to sign on behalf of and bind the Client hereunder.
Governing Law/Arbitration. This Agreement shall be governed by and under the laws of the State of South Carolina without regard to conflict of laws principles. Any controversy or claim arising out of or under, or relating to, this Agreement, including but not limited to authority to sign this Agreement, contract formation issues, fraud or the breach of any provision hereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, in any arbitration hereunder, the arbitrator shall have no authority to award any relief outside the scope of all disclaimers stated in this Agreement. All arbitration proceedings brought hereunder shall be located exclusively in Lancaster County, South Carolina.
Miscellaneous. This Agreement may not be assigned by Client without the prior written consent of HVAC Marketing Xperts which may be withheld or denied by HVAC Marketing Xperts in its sole and absolute discretion. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto. The prevailing party in any suit, action or proceeding (including, but not limited to, an arbitration proceeding) arising out of or in connection with this Agreement, shall be entitled to an award of reasonable attorneys’ fees, costs and disbursements incurred by it in connection therewith. Any failure by HVAC Marketing Xperts to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. All previous communications about the subject matter of this agreement, either oral or written, are hereby abrogated and withdrawn, and this agreement constitutes the entire agreement between Client and HVAC Marketing Xperts with regard to the subject matter hereof. No terms, conditions, understandings, or agreements purporting to modify or vary the terms of this document shall be binding unless hereafter made in writing and signed by both Client and HVAC Marketing Xperts. There are no third party beneficiaries of or to this Agreement or any of the provisions hereunder. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same instrument. Any signature to this Agreement that is transmitted by fax or email transmission shall be considered an original signature for all purposes. It is the intent of the parties hereto that all provisions of this Agreement shall be enforced to the fullest extent possible. Accordingly, if any arbitrator determines that the scope and/or operation of any provision of this Agreement are too broad to be enforced as written, the parties hereto intend that the arbitrator should reform such provision to the minimum extent necessary to render such provision enforceable. If, however, any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future law, and not subject to reformation, then such provision shall be fully severable, and this Agreement shall be construed and enforced as if such provision was never a part of this Agreement. The rule of construction that an ambiguity in a contract will be construed against the drafter is hereby waived by both parties hereto.
By signing this Agreement below, Client acknowledges and affirms that Client has read and fully understands the Terms and Conditions of Service on the reverse side of this Agreement, which Terms and Conditions form an integral part of this Agreement.