Terms and Conditions Of Service
Engagement. Customer, by its execution hereof, engages No Joke Marketing, LLC DBA Local Child Care Marketing (LCCM) as an independent consultant to perform the services outlined in the Proposal, which is incorporated herein. These Terms and Conditions, together with the terms and provisions contained in the Proposal, are hereinafter referred to collectively as the “Agreement.”
Fees and Payments. During the Term, Customer agrees to pay in full when due the monthly fees for the service selected by Customer. The first monthly fee shall be due upon acceptance of this Agreement by LCCM. 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.). Customer acknowledges and agrees that any fee not paid within ten (10) days after its due date shall bear a Fifty dollar ($50.00) Late Fee. Thereafter, a Late Fee of fifty dollars ($50.00) shall accrue for each 30 days past the due date day until paid. All paid fees are nonrefundable. LCCM reserves the right, at any time and from time to time, to increase the monthly fees and other fees charged by LCCM for the services provided hereunder upon thirty (30) days’ prior notice to Customer.
Account Ownership. Customer’s domain name and social media accounts shall belong to the Customer. However, during the Term of this Agreement, LCCM may restrict Customer’s access to certain items to protect the Customer from additional fees that may be incurred to repair any damages that could be made Customer. If, at LCCM’s sole discretion, access is provided and any repairs become necessary as a result of Customer’s actions, Customer will be charged LCCM’s Preferred Hourly Rate for all work required to make such repairs.
Intellectual Property Ownership. Anything that LCCM creates during the engagement belongs to LCCM except for assets specified in “Account Ownership” section. This includes but not limited to: ads, creative, copy, email blasts, text messages, social media content and graphics.
Customer acknowledges and agrees that LCCM’s ability to meet any and all schedules is entirely dependent upon Customer’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Customer’s performance or Changes in the Services or Deliverables requested by Customer may delay delivery of the Deliverables. Any such delay caused by Customer shall not constitute a breach of any term or condition by LCCM nor shall it constitute a breach of LCCM’s obligations under this Agreement.
Customer Authorization. During the term of this agreement, Customer authorizes LCCM for the duration of this agreement to (i) access without limitation Customer’s website to analyze its content and structure; (ii) to alter Customer’s website as necessary or desirable in LCCM’s sole and absolute discretion for purposes of search engine optimization, and for any other purpose agreed to by Customer and LCCM; (iii) upload such pages and content to the Customer’s website as LCCM deems appropriate in its sole and absolute discretion for purposes of search engine optimization; (iv) make use of all of Customer’s logos, trademarks, copyrights, website images and similar items to create informational pages and for other uses deemed necessary by LCCM to provide the services subscribed for hereunder; and (v) communicate with third parties as LCCM deems necessary in its sole discretion to perform LCCM’s services hereunder, including but not limited to Customer’s web designer.
Customer Consent to Installation of Telephone Tracking Number. Customer consents to the placement of a telephone tracking number on Customer’s website and further consents to the recording of all telephone calls that are routed through the telephone tracking number. Customer understands that the telephone tracking number will remain on the Customer’s website throughout the Term of this Agreement.
Upon termination of this Agreement, Customer shall have thirty (30) days from the effective date of termination to move its website to another website host. If Customer has not moved its website to another host, by the end of such thirty (30) day period, LCCM shall have the authority and right, without notice to or the consent of Customer, to provide a backup to Customer and then remove Customer’s website from LCCM’s server, with no liability to LCCM for such removal, regardless of whether any possible damages to Customer are known or unknown by LCCM.
Customer acknowledges and agrees that upon the termination of this Agreement, it has three options for transition of its website and email addresses, as follows:
1. LCCM will provide customer access to their cPanel to enable Customer to move the website and email addresses.
2. Customer can contract with LCCM’s recommended provider, IT4Hire, to implement Customer’s website with a hosting provider of Customer’s choice.
3. If Customer has an IT provider that understands how to transition the website, LCCM will provide a cPanel Access to the IT provider for 30 days at no additional charge.
Additionally, your domain will be released and an EPP code provide. These codes do expire. So, take immediate action.
Additional Work. Any work requested outside this proposal’s scope of services will be billed hourly at these preferred rates:
– Strategic Planning Sessions – $225.00 per hour (posted hourly rate is $275 per hour)
– Project Management & Strategy Sessions – $145.00 per hour (posted hourly rate is $175 per hour)
– Senior Technician – $95.00 per hour (posted hourly rate is $125 per hour)
– Junior Technician – $75.00 per hour (posted hourly rate is $100 per hour)
Customer Acknowledgments. Customer makes the following acknowledgments: (i) that LCCM 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 LCCM will not be responsible for any changes or alterations to Customer’s website made by Customer or any third parties that negatively impact the rankings or visibility of Customer’s website; (iii) that because the results of the services to be provided by LCCM hereunder depend upon a number of factors outside of LCCM’s control, LCCM cannot guarantee the results of its services to Customer; (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, LCCM cannot guarantee that Customer’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 LCCM shall use commercially reasonable diligence to promptly submit and/or effect a change in rankings of Customer’s website, some search engines may take several months or longer to list and/or effect a change in rankings.
Force Majeure. LCCM 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 LCCM’s reasonable control after exercising commercially reasonable efforts.
DISCLAIMERS OF LIABILITY. IN ADDITION TO ANY DISCLAIMERS OF LIABILITY FOUND ELSEWHERE IN THESE TERMS AND CONDITIONS, LCCM SHALL NOT BE LIABLE TO CUSTOMER 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. LCCM 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.
LCCM will not be responsible for results due to any alterations or overwrites made to a website by another party, as Customer understands that this can adversely affect the search engine rankings of Customer’s website(s), nor for the effect of Customer linking to any particular websites without the prior consultation and approval of LCCM.
Customer Representations and Warranties; Indemnity. Customer represents and warrants to LCCM the following: (i) that Customer owns the URL listed; and (ii) that Customer owns or has the absolute and unrestricted right to use and to grant to LCCM the right to use all graphics, photos, designs, intellectual property and artwork, and any element or elements thereof, that Customer furnishes to LCCM. Customer indemnifies and holds harmless LCCM and LCCM’s 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 Customer 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 Customer to comply with any covenant of Customer contained in this Agreement. If Customer 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 Customer, and that the undersigned has full authority to sign on behalf of and bind the Customer hereunder.
Expectations of Customer.
LCCM believes in collaboration. Customers are expected to attend regular phone calls (1-2/times per month) with LCCM, respond to emails, calls or text messages in a timely manner (within 3 business days) and work with LCCM for the betterment of both businesses. If this does not happen, customer acknowledges that their business may suffer.
Governing Law/Arbitration. This Agreement shall be governed by and under the laws of the State of New York, 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 Erie County, New York
Guarantees. Each contract is unique and the guarantees vary from guaranteeing leads or guaranteeing enrollments. In an effort to ensure fairness on both sides the following additional terms apply for any guarantees to be valid.
Attribution: LCCM reserves the right to check leads and enrollments and to attribute leads that do not have definitive lead sources or by using their technology. Traditionally 28% of leads that view our ads will end up calling your center directly or bypass our landing pages and go right to your website.
Copy and Creative: LCCM copy must be used during your campaigns. Both the copy and imagery have been proven to work, and that is the reason we are able to offer a guarantee. If you choose to rewrite the copy, the guarantee is void.
Data Access: LCCM needs full access to wherever your lead and enrollment data is stored.
Follow Up: Swift follow up is required for the leads to convert to enrollments. Each lead needs to be called within two business hours and followed up with at least seven additional times via phone, email and text.
Specific Guarantee Information:
Lead Guarantee: If at least ten leads have been generated by the contract term, LCCM has up to 90 days to generate the additional leads at no cost to the customer.
Enrollment Guarantee: If at least 50% of the enrollment guarantees have been met by the contract term, LCCM has up to 90 days to generate the additional leads at no cost to the customer.
Miscellaneous. This Agreement may not be assigned by Customer without the prior written consent of LCCM which may be withheld or denied by LCCM 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. Each 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 responsible for their own attorneys’ fees, and costs incurred by it in connection therewith. Any failure by LCCM 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 Customer and LCCM 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 Customer and LCCM. 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 or judge 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.