This Subscription Agreement is between you (“you”), and MARTEC360, LLC, a Florida limited liability company (“MARTEC360”), for the purpose of achieving optimized Search Engine Campaigns with Google AdWords (including any other advertising portals such as Bing, Facebook, Instagram, LinkedIn) (collectively, “Advertising Portals”).
Accounts. You shall provide MARTEC360 powered by Finch with all login information (such as username and password) necessary to access your accounts with the Advertising Portals (the “Accounts”). By submitting such login information, you acknowledge and agree to allow MARTEC360 powered by Finch to act on your behalf, to identify oneself with your login information, gain access to your Accounts, download information and update information on your Accounts at its sole discretion. You acknowledge that you are the owner of the Accounts. You agree to allow MARTEC360 to make all changes required in your Accounts necessary to perform the Services. You hereby grant MARTEC360 powered by Finch with the authority to pursue, download and store in its frequent storage any or all of the information published by your Account provider’s system, website, user interface and program interface.
Services. MARTEC360 powered by Finch hereby agrees to provide the following Services to you for the purpose of achieving optimized paid advertising campaigns with your Accounts:
2.1 Analyze and enhance existing campaigns to achieve optimal granularity
2.2 Keyword discovery to augment campaign coverage
2.3 Runtime performance adjustments of cost per click to meet client objectives
2.4 Management and monitoring of campaigns’ objective
2.5 Reporting provided fully transparent in your Google AdWords account (and other Accounts)
2.6 Pre-existing client campaigns will be left as is and paused
2.7 Provide such other Services as may be agreed upon from time to time by you and MARTEC360, including as may be set forth on Exhibit A.
Campaign Objective. MARTEC360 powered by Finch will provide the Services to you with targets (measured monthly) based on your stated objectives. You understand that the initial period is a data gathering phase and may not be a fully tuned campaign. Each variation of any keyword will initially be executed with aggregate site data based on history, and as keyword variation obtains independent data the performance optimization will kick in fully. The length of this period depends on the traffic to the site and each keyword.
Modifications independently made to configuration by you to the campaign (with the exception of adding New Ads to Ad Groups) can substantially affect and alter optimization of and results for the campaigns. Such altered configurations will, therefore, no longer be considered part of the original optimization Subscription Agreement, and may be billed separately in order for work to continue on the altered configurations.
Payment. In consideration and for compensation of MARTEC360’s performance of the Services, you agree to pay the MARTEC360 the mutually agreed upon price of 18% of gross advertising spend for Google AdWords (and any other Advertising Portals), to be inserted on your behalf by MARTEC360 powered by Finch and to be paid in full on the 1st date of the month following the delivery of service by credit card or bank transfer. You are responsible for direct payment to Google AdWords and all other applicable Advertising Portals.
Term. This Agreement shall remain in effect until terminated pursuant to Section 7 below.
Your Responsibility and Copyright Considerations. You will supply MARTEC360 powered by Finch with My Client Center access to Google AdWords account and provide a contact person that will facilitate any configuration of Google Conversion Tracking and activate the MARTEC360 powered by Finch software application.
You affirm that you are the full owner of activated accounts, or that you have obtained proper permission from the rightful owner(s) for use of such accounts. You will indemnify MARTEC360 powered by Finch and hold MARTEC360 harmless against any claims of libel, copyright, or trademark infringement brought against MARTEC360 powered by Finch with respect to use of those accounts.
Termination Provisions. Either you or MARTEC360 powered by Finch may, for any reason or no reason or by mutual agreement, terminate this Agreement by giving 30 days’ written notice, unless Exhibit A applies and the services described therein are in the “Active Period” (as defined in Exhibit A), in which case you must give 90 days’ written notice to MARTEC360 to terminate this Agreement. If notice of termination is given by either you or MARTEC360, no new work shall be initiated, but any work previously authorized by you up to the point of receipt of termination notice shall be cancelled, unless parties agree otherwise or such work cannot be cancelled due to MARTEC360’s contractual obligations to third parties. You agree to be responsible for prompt payment for such services to MARTEC360 based upon the mutually agreed upon price in accordance with Section 4. These same terms will apply in the event that either you or MARTEC360 powered by Finch should initiate termination.
Liability Limitation. YOU ACKNOWLEDGE AND AGREE THAT MARTEC360 SHALL NOT BE LIABLE WITH RESPECT TO, OR RESPONSIBLE FOR, ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, (i) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (ii) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR, (iii) TO THE EXTENT ALLOWABLE UNDER STATE LAW, PERSONAL INJURY OR DEATH. IN NO EVENT WILL MARTEC360’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF $100.00, OR THE AMOUNT LICENSEE ACTUALLY PAID MARTEC360 UNDER THIS AGREEMENT (IF ANY) DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS.
Disclaimer of Warranties. YOU AGREE THAT YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT ALL OF SUCH SERVICES ARE PROVIDED ON AN “AS IS,” AND “AS AVAILABLE” BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. MARTEC360 EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WHILE REASONABLE EFFORT HAS BEEN MADE TO ENSURE THAT YOU WILL RECEIVE THE SERVICES, MARTEC360 MAKES NO WARRANTY THAT SERVICES RENDERED TO YOU ACCORDING TO THIS AGREEMENT WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES MARTEC360 MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. MARTEC360 MAKES NO WARRANTY REGARDING ANY TRANSACTIONS ENTERED THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MARTEC360 OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED BY YOU FROM A THIRD PARTY.
Ownership. Title to all intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services (the “MARTEC360 Intellectual Property Rights”) will remain the exclusive property of MARTEC360. Nothing contained in this Agreement grants or confers, or shall be construed to grant or confer, any rights in or to any of the MARTEC360 Intellectual Property Rights. Title to any third-party products included in the MARTEC360 Intellectual Property Rights, or otherwise provided to you by MARTEC360, and all intellectual property rights in and to them, are and will remain the exclusive property of such third parties.
Indemnity. You agree to release, indemnify, defend and hold harmless MARTEC360 and any of MARTEC360’s contractors, agents, employees, officers, members, managers, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys’ fees and expenses, relating to or arising out of (a) this Agreement or the breach of your warranties, representations and obligations under this Agreement, (b) the Services or your use of such Services, including without limitation infringement or dilution by you, or someone else using our Services from your computer, (c) any intellectual property or other proprietary right of any person or entity, (d) a violation of any of our operating rules or policies relating to the Services provided, (e) any information or data you supplied to MARTEC360, or (f) any liability related to the use of the Accounts, including words and phrases used in connection with your Accounts. The terms of this paragraph will survive any termination or cancellation of this Agreement.
Representations and Warranties. You agree and warrant that: (i) your use of the any of the Services will not directly or indirectly infringe the legal rights of a third party, (ii) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder, (iii) you are the legal owner and have the legal right to perform editing of any of the Accounts registered with the Services, (iv) you are of legal age to enter into this Agreement; and (vi) you agree to comply with all applicable laws and regulations. Any charges obliged by your Account provider will solely apply to you. You agree to pay and maintain any service agreement that you have with your Account provider. You agree to allow MARTEC360 to change any settings with your Account provider and agree to pay all media charges caused by such operations even if charges increase as a result.
Miscellaneous. Any dispute arising from this Agreement will be litigated or arbitrated in Hillsborough County, Florida and/or Salt Lake City, Utah. This Agreement shall be governed in accordance with the laws of the State of Florida and/or Utah, without regard to or application of Florida and/or Utah’s conflicts of law principles. This Agreement represents the entire agreement between all parties hereto concerning the subject matter of this Agreement and supersedes any and all prior or contemporaneous oral or written statements, agreements, correspondence, quotations and negotiations.
Exhibit A: Professional Services
Description of Professional Services
As described in 2.7, MARTEC360 may provide additional services (“Professional Services”) outside the services explicitly outlined in Section 2. Professional Services may include, but are not limited to:
- Conversion Rate Optimization: A/B testing, heuristic evaluations, uer research or similar strategic consulting or delivery on website landing pages.
- Custom Integration Work: Developing unique integrations between your Paid Search account and third-party data sources (i.e. CRMs, Merchant platforms, etc.)
- Tag Management: Implementing, troubleshooting, or otherwise supporting conversion tracking needs.
MARTEC360 will provide a statement of work for Professional Services that include any costs for Professional Services and the duration of the activity. The cost will be billed evenly across the number of months estimated to complete the activity.
Active Period: The duration of this activity outlined in the Professional Services statement of work will constitute the active period referred to in Section 7.
Complementary Offering: MARTEC360 may offer a complimentary credit to you to offset all or part of the cost for professional services. The amount of complimentary credit offered per month is determined by MARTEC360 and is not transferrable to other balances. The offering of complimentary credit, when extended, will be documented in the statement of work. Termination of this agreement during the active period may cause the forfeiture of any complimentary credit offered.
In utilizing Professional Services, you acknowledge the acceptance of the following responsibilities:
- You will cover costs for third-party tools applicable to accomplishing professional service activities
- However, MARTEC360 will not incur tool usage costs on your behalf without your written authorization.
- In the event that the agreement between MARTEC360 and you is terminated before professional services balance is resolved, the cost of any completed work would be due at that time.
Rescinding of Suspending Professional Services
MARTEC360 may rescind or temporarily suspend the availability of professional services at any time for the following reasons:
- If you and MARTEC360 cannot agree on the professional services activities or tools needed (including related costs or fees) applicable to accomplish professional service activities.
- If you are unable or unwilling to act on recommendations and results that are included in the delivery of professional services
- If you otherwise breach any terms and conditions of this Agreement.
MARTEC360 will notify you of any such rescission or temporary suspension in writing. Any charges for any work not yet completed will be waived.