Pay Per Click Service Agreement
This Pay Per Click Services Agreement (“Agreement”) is a valid legal agreement between WIRELESS PLUS CONNECTION LLC (“hereinafter referred to as FRUIT ENGINE OR FE”) with a principal business address at 15500 Erwin St., Unit 290, Van Nuys, California 91411 and the client, the individual or single entity ordering FE’s Pay Per Click Management Services (“Services”) either via an on-line order form or via FE’s customer service call center (“Sign-up Process”). This Agreement governs the client’s purchase and use of FE’s Services ordered by the client during the Sign-up Process.
For purposes of this Agreement, the 'Effective date' shall be that time when the client uses his or her credit card and the payment for use thereof has been successfully made.
The terms of this Agreement shall commence on the Effective Date, as herein defined.
R E C I T A L S
WHEREAS, FE is web design and Internet development company that offers graphic design services and web page coding and implementation support to initiate such services.
WHEREAS, client chooses to employ the aforementioned Pay Per Click Management services of FE,
WHEREAS, client has carefully reviewed the Terms of Service Agreement and abides by terms and conditions mentioned in this Agreement.
NOW THEREFORE, in consideration of the terms and conditions set forth in this Agreement, FE and client agree to the foregoing and as follows:
This is Your Pay Per Click Service Agreement
In addition to the terms and conditions in the General Provisions and other applicable Schedules in the Agreement, the following additional terms and conditions shall apply to any and all purchases of Online Marketing Services (as defined below).
1. Description of Service. This Terms of Service Agreement will strongly establish and explain the terms and conditions on which FRUIT ENGINE provides Pay Per Click Management service to Client. It is important that this document be thoroughly reviewed if Client agrees to these terms and conditions, and is willing to be bound by them.
1.1 This Agreement explains the important terms and conditions under which FRUIT ENGINE shall operate and provide Pay Per Click Management service package subscribed to / or applied to by the Client.
1.2 This Agreement also declares your consequent obligations as our Client in relation to the Pay Per Click Management service package you purchased.
1.3 Any attempt to amend terms and conditions enclosed in this Agreement and question the said points after the effective date through conflicts or misrepresentation in any other document shall be of no force and void the effects.
1.4 By availing of the Pay Per Click Management service of FRUIT ENGINE, and by entering into this page, you as our Client, acknowledge that you have read, understood, and agree to be bound by all terms and conditions mentioned in this Agreement, as well as any additional rules or policies that may be established by FRUIT ENGINE from time to time. This Agreement, and those that may from time to time be added or modified herein, constitutes the exclusive agreement between the Client and FRUIT ENGINE concerning your use of the Pay Per Click Management service and shall supersede and govern all prior proposals or agreements made by any of our representatives.
1.5 In order to use the Services, you must obtain access to the Internet / World Wide Web, either directly or through devices that access Web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet / World Wide Web, including a computer and modem or other access device.
1.6 FRUIT ENGINE will be opening one Pay-Per-Click Account (either with Google Adwords or with MSN Adcenter or with Yahoo! Search Marketing) in behalf of your website that will be optimized for Pay Per Click Marketing.
2. Your Obligations
2.1 If you provide any information that is untrue, inaccurate, incomplete or not current, or we have reasonable grounds to suspect that such information is untrue, inaccurate, incomplete or not current, Fruit Engine has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
2.2 You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (for purposes of this Schedule, "Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Fruit Engine, are entirely responsible for all Content that you upload, post, email or otherwise transmit via the Pay Per Click Marketing service. Fruit Engine does not control the Content posted via the Pay Per Click Marketing service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Fruit Engine Services, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Fruit Engine be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Pay Per Click Service.
2.3 Restrictions. The Client is expected to recognize the practice of good and ethical Internet practices. The Client shall comply with the rules appropriate to any of the product or service provided by Fruit Engine. The Client is also expected not to permit Fruit Engine access to information the Client desires to keep confidential.
2.4 Privacy and Intellectual Property Rights
2.4.1 Client acknowledges (i) given the global nature of the Internet, that there is no necessity to modify the product and service provided by FRUIT ENGINE (ii) that such actions will likely impair the performance standards of Pay Per Click optimization expected by FRUIT ENGINE.
2.4.2 Client shall not update, alter, modify, or tamper with the optimized pages. The client hereby acknowledges that such inappropriate actions may void the guarantee offered by FRUIT ENGINE.
2.4.3 Client shall have no right to copy, in whole or in part, the Pay Per Click optimized pages. Client, however, can only make one archival copy of the optimized pages solely for archival and disaster recovery purposes only. Client shall have no right to upload the pages or redirect the previous optimized website to other domain. Client acknowledges that such action may also void the guarantee aforementioned.
2.4.4 Client hereby understands and agrees that the optimized pages shall be the exclusive property of FRUIT ENGINE.
3. Search Visibility
3.1 Overview of the Service. FRUIT ENGINE employs Pay Per Click Marketing optimization services that will allow the Client’s website to be visible on the Sponsored Links on the Search Engine results and allows for their website to be viewed and seen provided that complete requirements are submitted by the Client and considering that Client’s monthly budget covers for the number of clicks or visits any customer or user does to view their website.
FRUIT ENGINE guarantees that Client’s website will be visible to search results placed on Sponsored Links of chosen Search Engine(s) using approved keywords, provided that the budget set and allotted for the month is available and will cover for the number of clicks or visits any customer or user does to view Client’s website.
This guarantee applies only upon the completion of work by FRUIT ENGINE’s Pay Per Click Specialists. A verification report will be sent to Client after all site optimization and Pay Per Click Marketing processes have been completed.
4. Pay Per Click Service
4.1 Keyword Analysis
Upon receipt of the Keyword Profiler completely filled-out by the Client, FRUIT ENGINE shall proceed in keyword research using tried and tested techniques, methods, and tools. Our SEO and Pay Per Click specialists will start the process using Client’s keyword suggestions and examine your website as initial analysis. After having performed the keyword research, a recommended keyword list will be sent to Client for review, selection and approval.
Client shall thoroughly review the list sent by FRUIT ENGINE and send back an approved list for page optimization to commence. Client may approve it or suggest additional keywords. FRUIT ENGINE will only allow up to two (2) rounds for Client to choose the best keywords or key phrases for optimum performance. The approved final list must, however, follow the guidelines set by FRUIT ENGINE in choosing the right keywords. If Client has a list of preferred keywords, FRUIT ENGINE’s SEO and Pay Per Click specialists will have to approve and analyze them first before optimization moves to the next process.
If no response is received from Client within a period of sixty (60) days, the optimization and Pay Per Click Marketing project shall be abandoned.
4.2 Content Writing and Site Optimization
FRUIT ENGINE’S SEO and Pay Per Click specialists will create a customized text written by use of a certain technique so search engine spiders will understand it. Furthermore, it should follow the optimization standards (keyword density, prominence, and proximity). Website’s HTML codes will be validated to ensure that Client’s website is in working order for the search engines.
Fruit Engine will create landing page(s) that will be uploaded upon prior approval from client.
Client shall carefully read the text and ad content, check all links and make sure that design of the pages is consistent with the other site pages. Request for revisions is allowed granted that a detailed instruction is given. Client will only be permitted to revise his ad content twice. Minor changes on the text, layout, links, and images will be entertained. However, a radical change in the content made by the Client, will not be processed because there is little guarantee that such will perform well in the search engines.
If Client insists on using his own content, guarantee is void. Client shall send a written approval for the optimized pages to be uploaded to website to complete the optimization.
Upon receipt of the written approval, FRUIT ENGINE shall now upload the optimized pages to Client’s website.
Client shall provide correct and full (read / write) FTP (File Transfer Protocol) access to the root directory of website. FRUIT ENGINE shall make a copy of Client’s website prior to uploading the optimized pages for archival and disaster recovery purposes.
4.3 Visibility report
The priming period of a minimum of seven (7) days allows the Search Engines and directories enough time to analyze and index FRUIT ENGINE’S submissions. We will send you a detailed visibility report to verify the ‘real’ overall daily performance from each high-ranking keyword phrase in the Search Engines. This report will be the basis if minimum guarantee has been met.
Completion of optimization lasts until contract between Client and FRUIT ENGINE expires, and / or any of the parties mentioned pre-terminates the agreement for valid reasons.
5. Fees, Payments, Guarantees and Terms
5.1 Set-up and One-time Fees. Client agrees to pay FRUIT ENGINE the set-up fee. Client further agrees to pay the optimization fee amounting to the package price and payment term chosen during which such services are provided.
If Client wishes to upgrade the optimization service, monthly service fees shall be prorated.
All rates and prices quoted by FRUIT ENGINE are in US Dollars. Merchant name to appear on statement is “WIRELESS PLUS CONNECTION”.
Payments by checks will be accepted but should only be for full payments. Checks should be addressed to FRUIT ENGINE, LLC and sent to 15500 Erwin Street Unit 290 VAN NUYS, CA 91411. Client agrees to consider that payment will only be considered received and valid after getting cleared from issuing banking institution.
FRUIT ENGINE shall charge a $35.00 fee for returned (NSF) checks.
If FRUIT ENGINE does not receive payment from the card issuer, Client agrees to pay FRUIT ENGINE all amounts due upon demand. Client agrees to pay all attorney’s and collection fees arising from any efforts to collect any past due amounts to the extent allowed by law.
5.2 Late Payments. Should Client fail to pay any fees on the date due, FRUIT ENGINE shall have the right to make use of any or all of the following:
a.) Assess and collect charges for the delay in an amount constituting five percent (5%) per month of which amount shall not exceed the ceiling provided by law, when available
b.) Suspend or terminate any access to any or all of the services of FRUIT ENGINE,
c.) Terminate the herein Agreement without incurring any liability whatsoever arising from the discontinuance of services due to late payments.
5.3 Continuous Payment. The suspension or termination of FRUIT ENGINE services, or of the Agreement, shall not absolve the client from paying any outstanding fees, interests and penalties. Client shall be responsible for any costs for the collection of such fees. Costs herein contemplated shall include, among other expenses rightfully due to FRUIT ENGINE, attorney’s fees, expenses of litigation, and payment of damages.
5.4 Refunds and guarantees. All payments made to FRUIT ENGINE are paid to Google AdWords and thus are non-refundable. Should Client have a remaining balance from his budget upon the end of his contract, FRUIT ENGINE ensures this will continue to be consumed by his ads unless Client wishes to renew his contract with the company and have the remaining amount of his budget added up in his new budget.
5.4.1 The usual time for the search engine to index your website from the time of submission is a minimum of seven (7) business days. Meanwhile, it would take ad campaigns 24 hours from the time of submission to appear on the search engines.
5.4.2 FRUIT ENGINE does not guarantee position or improvement in Client’s sales or relevant website traffic. Such will still depend on the demand for Client’s product or service, design and layout of the site, and many other factors beyond the control of FRUIT ENGINE.
5.4.3 Pay Per Click services are provided on a best-efforts basis and based on sufficiency of Client’s monthly budget due to the dynamic and unpredictable nature of the World Wide Web. In no event shall FRUIT ENGINE be held liable for any consequential, indirect, incidental, punitive, or special damages including, without limitation, damages for loss of business profits, business interruption, or loss of business information arising out of this Agreement or out of the actions of third parties in connection with this Agreement, even if Client has been advised of the possibility of such damages.
5.4.4 Any website downtime of one day or more voids the guarantee because Search Engines will remove Client’s listing if site cannot be visited.
5.4.5 Duplicating the optimized pages after they have been uploaded will void the guarantee. Search Engines ban and penalize websites for such practice.
5.4.6 Transferring of the optimized pages to another domain will void the guarantee because optimization work was made for the original domain.
5.4.7 Client’s selection of keyword phrases that are too competitive may void the guarantee.
5.4.8 Redirecting the optimized pages to another site will void the guarantee. Deceptive redirects violate search engine guidelines and can cause a website to be banned or penalized.
5.4.9 Client shall not remove the link to sitemap and optimized pages. Doing so will also void the guarantee because if these pages are not viewable, website pages will not be crawled by the Search Engine spiders.
Should the Client accidentally remove the link to sitemap and optimized pages, FRUIT ENGINE will add the link to sitemap, and / or re-upload the sitemap and optimized pages, provided FTP is still accessible. If given FTP is no longer accessible, FRUIT ENGINE will inform the Client via e-mail of such incident. Failure on the part of Client to add the said link or re-upload the optimized pages will void the guarantee.
6. Your Obligation
6.1 Preferred Keywords
Client shall take full responsibility for the keywords or key phrases used and optimized in the website. Client acknowledges to follow the guidelines set by FRUIT ENGINE in choosing the keywords or key phrases. Should Client insist to use own keywords, further approval must be obtained from FRUIT ENGINE to ensure that keywords are not too competitive and can achieve successful search engine results.
6.2 Optimized Content
Client hereby agrees that the thoroughly reviewed and approved text content made by FRUIT ENGINE SEO and Pay Per Click specialists are still the property of the optimization provider. Client, however, shall take full responsibility, legally or otherwise, for all content included in the optimized pages and the meta tags.
6.3 Website Layout
Client shall approve the optimized pages prior to uploading to the website. Client shall also send a written approval stating that the pages created by FRUIT ENGINE can be uploaded as part of the optimization and Pay Per Click processes.
6.4 Content Additions
Client shall pay FRUIT ENGINE additional compensation of US $50 per hour for any additional content, text, images, and web pages, outside the bounds of terms exceeding the scope of the optimization package and processes.
Should Client submit modifications, updates, and alterations after the completion of the optimization process and the written approvals. Client shall be charged US $50 per hour. For any significant changes to website, Client must notify FRUIT ENGINE before work commences.
Client also agrees to inform FRUIT ENGINE that if there are changes to the web pages, especially the home page. As the entrance to Client’s site, this page is critical. Client shall let FRUIT ENGINE know by email / phone call of any substantial revisions or changes to the website within three (3) business days. Guarantee is void if our work is altered without our knowledge.
6.6 FTP Access
Client shall agree to grant full File Transfer Protocol (FTP) access to FRUIT ENGINE during the guarantee period. This website access allows the SEO and Pay Per Click service provider ability and access to optimize Client’s website and to make any alterations to the site whenever necessary under circumstances.
Efforts are being made by FRUIT ENGINE to check if the link to sitemap, optimized pages are intact, as well as your website’s uptime. Should we find that any of the mentioned factors are missing, FRUIT ENGINE shall do the necessary solution as long as there is Full FTP access.
If FTP is no longer accessible, Client shall give the new access information and / or follow the instructions sent by FRUIT ENGINE. Failure of the client to do the necessary steps three (3) days after the e-mail has been sent voids the guarantee.
6.7 Uptime and Downtime
Client shall ensure 100% uptime of the website. Otherwise, Client shall notify FRUIT ENGINE of the downtime incident. Downtime of more than 24 hours voids the guarantee.
If optimized website is hosted by FRUIT ENGINE, Client shall be notified of possible downtimes and server maintenance schedules.
7. Project Delivery
7.1 Completed Delivery
Pay Per Click Marketing Services rendered by FRUIT ENGINE shall be considered completed upon delivery of the completion notification email.
Client shall provide FRUIT ENGINE, within seven (7) days and through means supplied by the latter, feedback or notice on approval of keyword phrase list, sitemap, and the optimized pages. If notice or feedback is received, the project shall be deemed accepted and satisfactory to the Client, and FRUIT ENGINE shall not be held liable or accountable for any additional costs required by the nature of the project.
8. Suspension and / or Termination
8.1 Termination by FRUIT ENGINE. FRUIT ENGINE shall have the right, upon written notice to Client, to terminate this Agreement, sue and / or make Client liable for breach, if:
a) Client fails to comply with its payment obligations under this Agreement;
b) Client materially breaches any term or condition this Agreement;
c) Client terminates or suspends its business activities, becomes insolvent, or becomes subject to any bankruptcy or insolvency proceeding, or assigns the project to creditors, or becomes subject to direct control of a trustee, receiver or similar authority;
d) Client infringes or duplicates the website subject of this Agreement, while having an outstanding balance, within six (6) months from effectivity date of this Agreement.
8.2 Termination by Client. Client shall have the right, upon written notice to FRUIT ENGINE, to terminate this Agreement if FRUIT ENGINE is in material breach of this Agreement and it fails to remedy such material breach within thirty (30) calendar days of its receipt of such written notice.
8.3 Survival. Any provisions of this Agreement that by their nature should survive termination of this Agreement will survive termination of this Agreement, unless contrary to the pertinent provisions herein stated.
8.4 Abandonment of Project. An Account Manager will be working with the Client in every phase to assure that requests are processed. However, if any response or approval is not received from the Client for more than thirty (30) days, the project will be considered abandoned.
9. Cancellations. A twenty-five percent (25%) fee of the total project cost is charged to the Client for any cancellations made to answer for costs of set-up requirements and billing in relation with the optimization services where the project billed has not been completed.
Payments previously paid are already non-refundable even if project has not been completed prior to cancellation.
To Cancel, Client is expected to send a cancellation notice through toll-free fax number at 866-841-0464 or email at firstname.lastname@example.org.
10. Records and Documents. FRUIT ENGINE is not responsible for the custody, archiving, safe keeping, as well as of returning or sending to Clients, documents, graphic work, physical goods or web pages created for Clients and / or sent to FRUIT ENGINE in any manner or form.
11.1 Customer Warranty
Client represents and warrants to FRUIT ENGINE that:
a) Client has the legal personality or authority, as the case may be, to enter into an Agreement with FRUIT ENGINE and perform its obligations under this Agreement;
b) Client shall use FRUIT ENGINE’s services and products for lawful purposes;
c) Client shall not violate any existing law, rules or regulations of any country where the project is used. Neither shall Client violate the intellectual property rights of any person, corporation or legal entity;
d) Client warrants that the project herein, or its principal place of business is not located in a country where the activities necessarily arising from the use of the project is prohibited;
e) In any instance that Client shall receive advice or notice of any claim with regard to the project or FRUIT ENGINE, Client shall promptly provide FRUIT ENGINE with a written notice of such claim.
f) Client agrees to inform FRUIT ENGINE via email within three (3) days of any changes, alterations or modifications to the homepage or the project in general.
11.2 FRUIT ENGINE Warranty
FRUIT ENGINE warrants that:
a) FRUIT ENGINE has the legal personality and authority to enter into this Agreement and perform its obligations under this Agreement; and,
b) FRUIT ENGINE will perform the services required under this Agreement.
12. Confidential Information
12.1 "Confidential Information", as contemplated in this Agreement, shall include the terms of this Agreement, any services provided by FRUIT ENGINE, the prices and fees charged under this Agreement, any other materials marked confidential by Client or FRUIT ENGINE and any other information conveyed under this Agreement that is identified in writing as confidential at the time of its conveyance.
12.2 Each party acknowledges and agrees that:
a) The Confidential Information constitutes valuable trade secrets of the party owning such Confidential Information;
b) It will use Confidential Information solely in accordance with the provisions of this Agreement; and;
c) It will not disclose, or permit to be disclosed, the Confidential Information of the other party to any third party without the disclosing party's prior written consent. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party's Confidential Information including, at a minimum, those precautions taken by a party to protect its own Confidential Information, which will in no event be less than a reasonable degree of care.
12.3 Confidential Information will not include information that is:
a) Publicly available;
b) Already in the other party's possession and not subject to a confidentiality obligation;
c) Obtained by the other party from any source without any obligation of confidentiality;
d) Independently developed by the other party without reference to the disclosing party's Confidential Information; or
e) Required to be disclosed by order of a court or other governmental entity; provided no less than ten (10) days written notice is given to the party owning such Confidential Information so that such party may obtain a protective order or other equitable relief.
13. Copyrights and Trademarks. FRUIT ENGINE will use content approved by you to complete your Website. Any such images and text shall remain your property. You represent to FRUIT ENGINE and unconditionally guarantee that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to FRUIT ENGINE are owned by you, or that you have permission from the rightful owner to use each element(s), and will hold harmless, protect and defend FRUIT ENGINE from any claim or suit arising from their use.
14. Additional Fees.
14.1 Taxes. Client will pay, or when necessary, reimburse FRUIT ENGINE for taxes and duties imposed upon and by reason of the performance of FRUIT ENGINE of its services, on all sales, use, transfer, privilege, whether international, national, state or local, except income taxes or gross receipts taxes which may be levied against FRUIT ENGINE.
14.2 Non-Exclusivity. The parties acknowledge and agree that FRUIT ENGINE is providing access to and use of its non-exclusive and non-transferable services to multiple Clients.
14.3 Support. FRUIT ENGINE agrees to provide live technical support during normal business hours (Monday-Friday, 9:00AM-6:00PM Eastern Time).
14.4 Severability. If any provision of this Agreement is held to be unenforceable, in whole or in part, the parts deemed unenforceable shall not affect the validity of the others, unless FRUIT ENGINE, in good faith, deems the unenforceable provision to be essential, in which case FRUIT ENGINE will have the right to terminate this Agreement.
14.5 Notices. Any written notice required or permitted to be delivered pursuant to this Agreement will be in writing and will be deemed delivered: a) upon delivery if delivered in person; b) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; c) upon transmission if sent via telecopier, with a confirmation copy sent via overnight mail; d) one (1) business day after deposit with a national overnight courier; e) upon transmission if sent via e-mail with a telecopy sent the same day, in each case addressed, in the case of Client, the address listed in FRUIT ENGINE’s records, or in the case of FRUIT ENGINE, at 15500 Erwin Street Suite 290 Van Nuys, CA 91411.
14.6 Assignment. Client will not assign or otherwise transfer this Agreement, in whole or in part, nor delegate or subcontract any of its rights or obligations hereunder, without FRUIT ENGINE’s prior written consent, which consent may be withheld, delayed or conditioned in FRUIT ENGINE’s discretion. FRUIT ENGINE shall have the right to assign this Agreement, in whole or in part, to a third party at any time upon written notice to Client.
14.7 Force Majeure. Neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control including, without limitation, to acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power, communications, satellite or network failures.
14.8 Waiver. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by an authorized representative of FRUIT ENGINE. The parties expressly disclaim the right to claim the enforceability or effectiveness of a) any amendments to this Agreement that are not executed by an authorized representative of FRUIT ENGINE and Client; b) any oral modifications to this Agreement; and c) any other amendments that are based on course of dealing, waiver, reliance or similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement.
14.9 Governing Law & Dispute Resolution with Third Party Licensors. This Agreement shall be interpreted and construed in accordance with the laws of the State of California without regard to conflict of law principles. The parties agree that all disputes arising out of this Agreement shall be brought only in the district and federal courts located in or for Van Nuys, California.
14.10 Non-solicitation. Client agrees that during the term of this Agreement and for a period of six (6) months after the expiration and non-renewal or termination of this Agreement, Client shall not solicit or attempt to solicit any employee or consultant of FRUIT ENGINE. Client further agrees that a violation hereof shall entitle FRUIT ENGINE to claim the amount of $100,000.00 as liquidated damages.
14.11 Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.
14.12 Modification of Terms. FRUIT ENGINE reserves the right to modify this Agreement at any time and without advance notice, effective upon making the modified provisions available on the Fruit Engine Llc. You are responsible for regularly reviewing these documents. Continued use of Services after any such changes shall constitute your consent to such changes. Fruit Engine Llc. does not and will not assume any obligation to notify you of any changes to this Service Agreement.
DISCLAIMER EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE FRUIT ENGINE SERVICE PROVIDED IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FRUIT ENGINE EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE FRUIT ENGINE SERVICE WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY FRUIT ENGINE, ITS EMPLOYEES, LICENSORS OR AGENTS WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL FRUIT ENGINE, OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE FRUIT ENGINE SERVICE, INCLUDING BUT NOT LIMITED TO RELIANCE ON ANY INFORMATION OBTAINED ON THE FRUIT ENGINE SERVICE; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, LOSS OF OR DAMAGE TO DATA, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO FRUIT ENGINE RECORDS, PROGRAMS OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PROVISION WILL APPLY WHETHER OR NOT FRUIT ENGINE IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THAT THIS PROVISION WILL APPLY TO ALL SERVICES AVAILABLE FROM FRUIT ENGINE AND ITS AFFILIATES. UNDER NO CIRCUMSTANCES, UNDER THE TERMS OF THIS AGREEMENT, SHALL DAMAGES INCLUDE LOSS OF BUSINESS, OR LOSS OF PROFITS WHETHER BASED ON BREACH OF AGREEMENT, BREACH OF WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE, NOR SHALL FRUIT ENGINE’S LIABILITY TO YOU EXCEED THE AMOUNT PAID BY YOU TO FRUIT ENGINE DURING THE THREE (3) MONTH PERIOD PRIOR TO WHEN THE ACTION AROSE. THE TERMS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT
16.1 Client agrees to defend, indemnify and hold harmless FRUIT ENGINE against any and all claims, losses, penalties, causes of action, damages, liability, costs, expenses (including but not limited to reasonable attorneys’ fees) or claims caused by or resulting indirectly from your use of the Service, without limitation or exception, including your violation of any third-party’s rights, (including, without limitation, infringement of any copyright trademark, service mark, trade secrets, right of privacy or publicity or any other third party right). The terms of this section shall survive the termination of your relationship with FRUIT ENGINE.
16.2 By completing our online sign up form, or confirming an order by phone, and giving us your credit card information, it indicates that you have read and understood the FRUIT ENGINE Service Agreement and thus is bound by the terms and conditions stated herein. All transactions entered to us using your credit card are binding. The undersigned agrees to the terms and conditions contained in this Service Agreement. The undersigned also states that he or she is empowered to enter into this agreement on behalf of the organization or business.
17. Limitations of Liability. FRUIT ENGINE’S SERVICES LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID BY CLIENT TO FRUIT ENGINE THROUGH THE DATE FRUIT ENGINE’S SERVICES LIABILITY TO CLIENT ACCRUES. IN NO EVENT SHALL FRUIT ENGINE BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS.
A project manager will be working with the Client in every phase to assure that requests are processed. However, if any response or approval is not received from the client for more than 30 days, the project will be considered abandoned.