SEO Service Agreement Version 2c
This Search Engine Optimization 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 (“hereinafter referred to as CLIENT”) ordering FE’s Search Engine Optimization 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 search engine optimization company that offers website optimization, web design, web hosting, graphic design services, web page coding and implementation support to initiate such services.
WHEREAS, CLIENT chooses to employ the aforementioned 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 SEO 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).
Description of Service. This Terms of Service Agreement will strongly establish and explain the terms and conditions on which FRUIT ENGINE provides Search Engine Optimization 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. This Agreement explains the important terms and conditions under which FRUIT ENGINE shall operate and provide Search Engine Optimization 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 Search Engine Optimization service package you purchased.
1.3 By availing of the Search Engine Optimization 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 optimization service and shall supersede and govern all prior proposals or agreements made by any of our representatives.
1.4 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.
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 your sole responsibility. This means that you, and not Fruit Engine, are entirely responsible for all Content that you upload, post, email or otherwise transmit via the Search Engines. Fruit Engine does not control the Content posted via the Search Engines and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using 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, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Search Engines.
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 provide Fruit Engine access to information the Client desires to keep confidential.
2.4 Privacy and Intellectual Property Rights
2.4.1 Client hereby recognizes and acknowledges that the search engine optimization techniques to be employed on the websites are customized by FRUIT ENGINE, copyright of which shall remain fully owned by the SEO service provider subject to the terms and conditions set in this agreement.
2.4.2 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 optimization expected by FRUIT ENGINE.
2.4.3 Client shall not update, alter, modify, or tamper with the optimized pages. The client hereby acknowledges that such inappropriate actions void the guarantee offered by FRUIT ENGINE.
2.4.4 Client shall have no right to copy, in whole or in part, the 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 guaranteed aforementioned.
3. Search Engine Visibility
3.1 Overview of the Service.
FRUIT ENGINE employs optimization services that will allow the Client's website to achieve relevant search engine ranking in the twenty (20) major search engines provided that complete requirements are submitted by the Client.
3.2 Guarantee.
FRUIT ENGINE guarantees top 20 positioning and ranking among the major Search Engines: Google, Yahoo, Bing and AOL. The minimum guaranteed number of top 20 positions is equivalent to the total number of keyword package ordered.
This guarantee applies only upon the completion of work by FRUIT ENGINE's SEO Specialists. A verification report will be sent to Client after all site optimization processes have been completed.
Client agrees that guarantee is void if SEO service provider finds out that our work has been tampered, duplicated, or redirected to another domain without prior notice and approval. Client also understands that guarantee is void if any instruction or important notice from FRUIT ENGINE as a warning of the probable effect in ranking is neglected.
4. SEO Service
4.1 Keyword Analysis
Upon receipt of the Keyword Profiler completely filled-out by the Client, FRUIT ENGINE shall start doing the keyword research using tried and tested techniques, methods, and tools. Our SEO specialists will start with Client's keyword suggestions and examine your website as initial analysis. Keyword research will then be performed and a recommended keyword list will be sent to you 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 or suggest additional keyword research. FRUIT ENGINE will only allow up to two (2) rounds to allow 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 specialists will have to approve and analyze them first before optimization will move to the next process.
If no response is received within a period of ten (10) days from the email sent date, the optimization project shall use the selected keywords by our SEO specialists.
4.2 Content Writing and Site Optimization
FRUIT ENGINE's SEO Specialists will create customized text written with such technique that search engine spiders will understand and following the optimization standards (minimum of 300 words with 3% keyword density). Website's HTML codes will be validated to ensure that Client's website is in working order for the search engines.
Client shall carefully read the text content, check all links, and make sure that design of the pages is consistent with the other site pages. Request for revisions are allowed granted that a detailed instruction is given. Minor changes on the text, layout, links, and images will be entertained. However, a radical change on the content made by the Client, will not be processed because such action may affect the effectiveness of Fruit Engine’s SEO techniques.
Client shall thoroughly review the content sent by FRUIT ENGINE and send back an approval for optimization to commence. Client may approve or suggest additional changes to the content. FRUIT ENGINE will only allow up to two (2) rounds to allow Client to modify the contents. The approved final content, must however, follow the guidelines set by FRUIT ENGINE.
If Client insists on using own content, guarantee is void. Client shall send a written approval for the optimized pages to be uploaded to website and 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 access to the root directory of website. FRUIT ENGINE shall make a copy of Client's website prior to uploading of the optimized pages for archival and disaster recovery purposes.
4.3 Visibility report
FRUIT ENGINE shall send a visibility report after 120 days from the date of submission and every month thereafter up to the point in time when the minimum guarantee is met. Reports generated shall include the current and updated positioning of the keywords being optimized among the major Search Engines: Google, Yahoo, Bing, and AOL.
The priming period of twelve to sixteen (12-16) weeks allows the Search Engines and directories enough time to analyze and index our submissions. But there will be times that some keywords may gain rankings earlier. We will send you a detailed visibility report showing the ranking of your website using your approved keywords in the major search engines. This report will be used as basis to determine if the minimum guarantee has been met.
Search Engines’ indexing time is completely out of FRUIT ENGINE's control. Search Engines' algorithms are constantly changing. However, with ethical optimization methods, FRUIT ENGINE is positive that your website will achieve relevant search engine rankings in the major search engines aforementioned.
4.4 Completion
Completion of optimization lasts until contract between Client and FRUIT ENGINE expires, and/or any of the parties mentioned pre-terminate the agreement for valid reasons.
Search Engine Optimization packages require a time period commitment defined as the early of when the minimum guarantee is met or twelve (12) month period after submission of the optimized client site. This defined time period commitment is also known as the contract period. Renewal of the service shall be automatic one(1) year after the client signs the contract, unless Client submits a 30 days notice prior to expiration in writing a request for the Service to be terminated and wishes for FE to discontinue service after the first year of subscription.
5. Fees, Payments, Guarantees and Terms
5.1 Client agrees to pay FRUIT ENGINE in advance of the time period during which such services are provided. All fees are due immediately and are non-refundable. FRUIT ENGINE is not obligated to fulfill the minimum guarantee unless the Client is fully paid.
Client agrees to provide FRUIT ENGINE with current billing and contact information and authorize FRUIT ENGINE to bill all account and related charges to the credit card on file. All rates and prices quoted by FRUIT ENGINE are in US Dollars. All charges will appear on Client's credit card statement. Client is also required to advise FRUIT ENGINE of any changes in credit card details.
Merchant name to appear on statement is “WIRELESS PLUS CONNECTION”. A $35 chargeback fee shall be assessed for each chargeback received by WIRELESS PLUS CONNECTION. If Client uses American Express or Discover credit card, the merchant name to appear on statement is “US WEBSITE BUILDER”.
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. Clients who issue NSF checks will be required to submit future payments through certified check or money order, or will be required to pay through credit card.
Client agrees that pre-payments will be billed and charged automatically, that FRUIT ENGINE may apply the amount due to the provided card at any time, and will issue no refunds. Client agrees to notify FRUIT ENGINE via email or fax of any change in credit card details. If the credit card is denied for any reason on the first attempt, FRUIT ENGINE will automatically attempt to resubmit such card within three (3) business days of the original attempt. Should the card be denied again, Client may provide alternative billing arrangements, or FRUIT ENGINE may terminate the account. All files within the account may be deleted on termination.
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 for payments, 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 set-up fees are non-refundable. In the event that the minimum guarantee has not been met or none of the optimized pages have been indexed within the contract period, FRUIT ENGINE will continue to optimize Client's website. If we still fail to meet the guarantee after the second optimization, then we refund your money.
5.4.1.1 FRUIT ENGINE guarantees top 20 positioning among the major Search Engines Google, Yahoo, Bing and AOL within twelve to sixteen (12-16) weeks.
The minimum number of listings guaranteed is the same as the package availed. For applicable Search Engine Optimization packages, this guarantee is valid only for keyword phrases approved by the Client and analyzed by FRUIT ENGINE's SEO specialists.
5.4.1.2 FRUIT ENGINE does not guarantee 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. Guarantee provided in this Agreement is based on the SEO provider's efforts to deliver top search engine rankings and on the cooperation of the client.
5.4.1.3 Optimization services are provided on a best-efforts basis 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.
5.4.1.4 Any website downtime of one day or more voids the guarantee because Search Engines will remove Client's listing if site cannot be visited.
5.4.1.5 Duplicating the optimized pages after they have been uploaded will void the guarantee. Search Engines ban and penalize websites for such practice.
5.4.1.6 Transferring the optimized pages to another domain will void the guarantee because optimization work was made for the original domain.
5.4.1.7 Client's selection of keyword phrases that are too competitive may void the guarantee.
5.4.1.8 Redirecting the optimized domain to another one will void the guarantee.
5.4.1.9 Removal or change in contents and metatags of the optimized page will also 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 agrees 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 feasible and can achieve successful search engine rankings.
6.2 Optimized Content
Client hereby agrees that the thoroughly reviewed and approved text content made by FRUIT ENGINE SEO 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 process.
6.4 Content Additions
Client shall pay FRUIT ENGINE additional compensation of US $30 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.
6.6 FTP Access
Client shall agree to grant full File Transfer Protocol (FTP) access to FRUIT ENGINE when FE is ready to upload the optimized pages of the client’s website. This website access allows the SEO 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 the 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 perform 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 ten (10) 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, any downtime incident 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
Optimization Services rendered by FRUIT ENGINE shall be considered completed when the minimum guarantee is met.
7.2 Feedback
Client shall provide FRUIT ENGINE, within ten (10) days and through means supplied by the latter, feedback or notice on approval of keyword phrase list, and contents. If notice or feedback is received, the project shall be deemed accepted and satisfactory to the Client.
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 of 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.
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. A Project Leader 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 ten (10) days, the project will be considered abandoned and deemed complete by default and payment will be surrendered in full.
9. Cancellations. A 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 Search Engine Optimization where the project billed has not yet begun.
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 customerservice@fruitengine.com.
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. Warranties.
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 guarantees 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 Provisions.
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, 7:00AM-4:00PM Pacific Standard 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 Unit 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, federal, and small claims 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.
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 website. 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 does not and will not assume any obligation to notify you of any changes to this Service Agreement
15. Indemnification
15.1 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.
15.2 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.
16. 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.
17. DISCLAIMER
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. |
