Terms of Use and Services Agreement
Last updated: April 2024
These Terms govern your access to, usage of all content, Product and Services available at website (the “Service”) operated by (“Consultant”, “us”, “we”, or “our”) in relation to any website visitors or users. Hiring clients or companies hiring the Consultant for services are hereafter referred to as the “Company”.
Your access to our services are subject to your acceptance, without modification, of all of the terms and conditions contained herein and all other operating rules and policies published and that may be published from time to time by us.
Please read the Agreement carefully before accessing or using our Services. By accessing or using any part of our Services, you agree to be bound by these Terms. If you do not agree to any part of the terms of the Agreement, then you may not access or use our Services.
Consulting Relationship
During the term of this Agreement, the Consultant will provide digital marketing services to the Company as described in the elected service package. The Consultant represents that it is duly certified (as applicable) and has the qualifications, the experience and the ability to properly perform the Services. The Consultant shall use its best efforts to perform the Services such that the results are satisfactory to the Company.
Intellectual Property
The Agreement does not transfer from Us to you any of Ours or third party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with and its licensors.
Third Party Services
In using the Services, you may use third-party services, products, software, embeds, or applications developed by a third party (“Third Party Services”).
If you use any Third Party Services, you understand that:
- Any use of a Third Party Service is at your own risk, and we shall not be responsible or liable to anyone for Third Party websites or Services.
- You acknowledge and agree that We shall not be responsible or liable for any damage or loss caused or alleged to be caused by or in connection with the use of any such content, goods or services available on or through any such web sites or services.
Accounts
Where use of any part of our Services requires an account, you agree to provide us with complete and accurate information when you register for an account.
You will be solely responsible and liable for any activity that occurs under your account. You are responsible for keeping your account information up-to-date and for keeping your password secure.
You are responsible for maintaining the security of your account that you use to access the Service. You shall not share or misuse your access credentials. You must notify us immediately of any unauthorized uses of your account or upon becoming aware of any other breach of security.
Fees
As consideration for the Services to be provided by the Consultant and other obligations, the Company shall pay to the Consultant the monthly pricing corresponding to the elected service package. A one-time account set up and configuration fee will be paid by the Company upon initial sign up. The set up fee includes a series of one-time, account checklist duties, setups, and configurations inside WordPress, monthly reporting systems, website feature installations, Google Analytics, Google Search Console. The set up fee also includes initial market research and competition analysis yielding the information needed to customize our advised action plan for your business.
Definition of Guaranteed “Substantial Results”
Both parties acknowledge and agree that “substantial improvement” results constituting full satisfaction of the guarantee under this Agreement shall be defined with mutually agreed goals via e-mail documentation and fulfilled within a period of three (3) months from the Effective Date. If the Consultant does not achieve the mutually agreed results within the stated period of time, the Company can elect one of the two following options:
1. Full, 100% refund. No questions asked. No hoops to jump through. If the Company requests a refund, the Consultant will issue it without any delay.
2. Continued work for free until you get the results. If elected by the Company, the Consultant will continue working for the Company absolutely free of charge until the agreed results are delivered.
Expenses
The Consultant shall not be authorized to incur on behalf of the Company any expenses and will be responsible for all expenses incurred while performing the Services unless otherwise agreed to in writing by the Company. As a condition to receipt of reimbursement for any expense, the Consultant shall be required to submit to the Company reasonable evidence that the amount involved was both reasonable and necessary to the Services provided under this Agreement.
Term and Termination
The Consultant shall provide ongoing monthly Services to the Company commencing on the Effective Date. The Company may terminate this Agreement at any time by providing written notice to the Consultant prior to the start of the next monthly service period; if notice is given during a monthly period, the Consultant shall continue providing services until the end of that period or until a future date specified in the notice, such as the end of the calendar year or a set number of months from notification, with the Consultant compensated for the full final service period ended, and the Company is not obligated to provide advance notice beyond the current monthly period as long as termination is effective at the end of a monthly period. The Consultant may also terminate this Agreement by providing at least 6 weeks written notice to the Company, and shall continue providing services during the notice period.
Should either party default in the performance of this Agreement or materially breach any of its obligations under this Agreement, including but not limited to the Consultant’s obligations under the Confidential Information provisions referenced below, the non-breaching party may terminate this Agreement immediately if the breaching party fails to cure the breach within ten (10) business days after having received written notice by the non-breaching party of the breach or default.
Each monthly service period will begin on the first day of the calendar month.
All provisions of the Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
Supervision of Services; Reports. All of the services to be performed by Consultant, including but not limited to the Services, will be as agreed between Consultant and the Company’s designated representative. The Company may request that project plans, progress reports and a final results report be provided by Consultant on a monthly, or some other agreed upon, basis.
Independent Contractor
The Consultant’s relationship with the Company will be that of an independent contractor and not that of an employee.
Method of Provision of Services
The Consultant shall be solely responsible for determining the method, details and means of performing the Services. The Consultant may, at Consultant’s own expense, employ or engage the services of such employees, subcontractors, partners or agents, as the Consultant deems necessary to perform the Services (collectively, the “Assistants”). The Assistants are not and shall not be employees of the Company, and Consultant shall be wholly responsible for the professional performance of the Services by the Assistants such that the results are satisfactory to the Company. The Consultant shall expressly advise the Assistants of the terms of this Agreement, and shall require each Assistant to execute and deliver to the Company an acknowledgement of all applicable terms and conditions.
- No Authority to Bind Company. Consultant acknowledges and agrees that Consultant and its Assistants have no authority to enter into contracts that bind the Company or create obligations on the part of the Company without the prior written authorization of the Company.
- No Benefits. Consultant acknowledges and agrees that Consultant and its Assistants shall not be eligible for any Company employee benefits and, to the extent Consultant otherwise would be eligible for any Company employee benefits but for the express terms of this Agreement, Consultant (on behalf of itself and its employees) hereby expressly declines to participate in such Company employee benefits.
- Withholding; Indemnification. Consultant shall have full responsibility for applicable withholding taxes for all compensation paid to Consultant or its Assistants under this Agreement, and for compliance with all applicable labor and employment requirements with respect to Consultant’s self-employment, sole proprietorship or other form of business organization, and with respect to the Assistants, including state worker’s compensation insurance coverage requirements and any U.S. immigration visa requirements. Consultant agrees to indemnify, defend and hold the Company harmless from any liability for, or assessment of, any claims or penalties with respect to such withholding taxes, labor or employment requirements, including any liability for, or assessment of, withholding taxes imposed on the Company by the relevant taxing authorities with respect to any compensation paid to Consultant or its Assistants.
Supervision of Services; Reports
All of the services to be performed by Consultant, including but not limited to the Services, will be as agreed between Consultant and the Company’s designated representative. The Company may request that project plans, progress reports and a final results report be provided by Consultant on a monthly, or some other agreed upon, basis.
ADA/WCAG Notification and Disclaimer
The Americans with Disabilities Act (ADA), Section 508, EN 301549, and the Web Content Accessibility Guidelines (WCAG) set requirements for website accessibility. The Consultant does not include ADA/WCAG compliance in the services provided. To ensure total compliance and minimize your legal risk, the Company is advised to take measures such as hiring an independent accessibility compliance firm that specializes in ADA/WCAG certification. These firms employ accessibility experts who will conduct a comprehensive review of your website, identify all compliance gaps, and work with you to remediate the issues. They can also provide an accessibility statement and certification for your site, which demonstrates to users and legal authorities that you have taken the proper steps. A tax credit is available related to ADA compliance; information on the tax credit can be found at: https://archive.ada.gov/taxcred.htm
Confidentiality
The Consultant acknowledges that during the engagement he will have access to and become acquainted with various trade secrets, inventions, innovations, processes, information, records and specifications owned or licensed by the Company and/or used by the Company in connection with the operation of its business including, without limitation, the Company’s business and product processes, methods, customer lists, accounts and procedures. The Consultant agrees that he will not disclose any of the aforesaid, directly or indirectly, or use any of them in any manner, either during the term of this Agreement or at any time thereafter, except as required in the course of this engagement with the Company. All files, records, documents, blueprints, specifications, information, letters, notes, media lists, original artwork/creative, notebooks, and similar items relating to the business of the Company, whether prepared by the Consultant or otherwise coming into his possession, shall remain the exclusive property of the Company. The Consultant shall not retain any copies of the foregoing without the Company’s prior written permission. Upon the expiration or earlier termination of this Agreement, or whenever requested by the Company, the Consultant shall immediately deliver to the Company all such files, records, documents, specifications, information, and other items in his possession or under his control. The Consultant further agrees that he will not disclose his retention as an independent Consultant or the terms of this Agreement to any person without the prior written consent of the Company and shall at all times preserve the confidential nature of his relationship to the Company and of the services hereunder.
Conflicts with this Agreement
Consultant represents and warrants that neither Consultant nor any of the Assistants is under any pre-existing obligation in conflict or in any way inconsistent with the provisions of this Agreement. Consultant represents and warrants that Consultant’s performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by Consultant in confidence or in trust prior to commencement of this Agreement. Consultant warrants that Consultant has the right to disclose and/or or use all ideas, processes, techniques and other information, if any, which Consultant has gained from third parties, and which Consultant discloses to the Company or uses in the course of performance of this Agreement, without liability to such third parties. Notwithstanding the foregoing, Consultant agrees that Consultant shall not bundle with or incorporate into any deliveries provided to the Company herewith any third party products, ideas, processes, or other techniques, without the express, written prior approval of the Company. Consultant represents and warrants that Consultant has not granted and will not grant any rights or licenses to any intellectual property or technology that would conflict with Consultant’s obligations under this Agreement. Consultant will not knowingly infringe upon any copyright, patent, trade secret or other property right of any former client, employer or third party in the performance of the Services.
Merger
This Agreement shall be terminated by the merger or consolidation of the Company into or with any other entity unless specified in writing that the newly formed entity elects to continue ongoing services.
Notices
All notices, consents, waivers or other communications required to be given under the provisions of this agreement shall be in writing and can be served by email, personally or forwarded by certified mail, return receipt requested, upon or addressed to the parties at the addresses set forth in the Recitals or to such other address as may be contained in a notice from either party to the other given pursuant to this paragraph. Notice by certified mail shall be deemed to be given when received, or when receipt is refused.
Jurisdiction and Applicable Law
The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Pennsylvania, without giving effect to principles of conflicts of law. Any litigation arising out of or under this Agreement shall be brought exclusively in the appropriate state or federal court of competent jurisdiction located in Berks County, Pennsylvania, and the parties hereto expressly consent to personal jurisdiction and venue with regard to such courts.
Severability
If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
Limitations
The Consultant shall not be liable for and does not guarantee the uptime, 100% accuracy, or performance of the Company’s website hosting, utilized software, plugins, or any other relevant business tools. The Consultant’s services and obligations under this Agreement are limited to the mutually agreed scope of work and shall not extend to ensuring the continuous, uninterrupted, or error-free operation of the Company’s digital assets or third-party services.
The Company agrees to indemnify and hold harmless the Consultant and Consultant’s agents, employees, officers, directors, representatives, assigns, licensees, parent(s), subsidiaries, successors, related and affiliated companies against any and all claims, damages, liabilities and/or expenses, including reasonable outside attorneys’ fees, resulting from or arising out of services provided and any applicable products, software, website hosting, plugins, or related digital applications utilized on the Company’s behalf. This release shall be binding upon Company, and Company’s heirs, executors, administrators, successors and assigns. In no event shall the Company be entitled to rescind or terminate any of the rights granted herein or to injunctive or other equitable relief.
Amendments and Waivers
No modification of or amendment to this Agreement, nor any waiver of any rights hereunder, shall be effective unless in writing signed by the parties to this Agreement. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.
Successors and Assigns
Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives. The Company may assign any of its rights and obligations under this Agreement. No other party to this Agreement may assign, whether voluntarily or by operation of law, any of its rights and obligations under this Agreement, except with the prior written consent of the Company.
Attorney’s Fees
In the event that any legal proceeding is brought to interpret or enforce any right or obligation under this Agreement, the parties each agree to waive their right to a jury trial. In addition, the prevailing party shall recover its reasonable court costs and attorney fees from the non-prevailing party.
Counterparts
This Agreement may be executed in any number of counterparts, each of which may be executed by only one party, which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument.
Entire Agreement
This instrument contains the entire and only agreement between the parties, and no oral statements or representations or prior written matter not contained in this instrument shall have any force and effect. This Lease shall not be modified in any way except by a writing executed by both parties.
Repeated Late Payment Penalty
If The Company is late with two (2) or more payments per the agreed billing terms set forth, Consultant reserves the right to suspend all active Company projects.
Changes
Position Driver SEO reserves the right, at our sole discretion, to modify or replace these Terms at any time.
If we make changes that are material, we will let you know by posting on our website, or by sending you an email or other communication before the changes take effect. The notice will designate a reasonable period of time after which the new terms will take effect.
If you disagree with our changes, then you should stop using our Services within the designated notice period, or once the changes become effective.
Your continued use of our Services will be subject to the new terms.