This Agreement shall commence on the Effective Date and shall continue for an initial term of six (6) months, counted from the first day of the month following the Effective Date (“Initial Term”). Thereafter, this Agreement shall automatically renew for additional six (6) month periods (each a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either party notifies the other in writing of its intention not to renew the Agreement at least thirty (30) days prior to the end of the then-current Term. Client shall give any notice of non-renewal by sending an e-mail to email@example.com.
Fees and Charges
2.1 Fees. In consideration of the Services to be performed by Momentum, Client shall pay to Momentum fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
All third party fees are paid directly to the third party vendor. This includes but is not limited to search ad spend, social ad spend, content distribution services, and email marketing services.
2.2 Call Tracking. All accounts come with up to two phone tracking numbers and 500 minutes per month for call tracking usage. If an account exceeds the maximum 500 minutes per month the Client will be billed at $0.06/minute for every minute exceeding 500 minutes.
2.3 Invoices. All invoices are due upon receipt, unless an exception has been detailed in the proposal. All monthly service fees require automatic monthly payment via credit/debit card or ACH. A monthly late charge of 5% [or the greatest amount allowed by state law] is payable on all balances that reach 30 days overdue. If an account reaches 45 days past due all services will be suspended. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment.
2.4 Returned Payments. A non-refundable $50.00 administrative fee will be assessed if a payment is returned from the bank.
2.5 Account Collection & Credit Reporting. Delinquent accounts may be reported to one or more of the national credit reporting agencies. Severely delinquent accounts or unpaid returned payments may be referred to an outside third party collection agency and/or litigation in accordance with state and federal laws. Clients with delinquent accounts may be held responsible for all collection costs, attorney fees, court costs and interest rates up to the maximum allowed by law.
3.1 Website – All websites are based off of web layouts that are presented during the kickoff phase. The layouts are selected during the kickoff phase and used for integration of the website. Each website includes one version or concept based off of a layout. Three rounds of design / integration revisions are included with all websites. If a client requires more design changes after three rounds of revisions have concluded, additional rounds of revisions will be considered a cost overrun.
3.2 Copywriting – Copywriting services are included in all website packages unless the client has opted out. Copy for a project can include, but is not limited to page copy, image/banner copy, and module copy. If the client already has website copy, or wishes to write their own copy then all website copy must be provided prior to integration phase. Momentum, LLC will is not responsible for proofreading copy that has been provided by the client. If Client decides to write their own copy or edit the copy Momentum has written there will be no reduction in the setup cost.
Two rounds of revisions are included with copy. If a client requires more changes after their 2 rounds of revisions have concluded, additional rounds of revisions will then be billed at Momentum’s standard hourly rate.
3.3 Deployment – When the website has been completed and is ready to be launched final payment for the setup/build fee is due. Under no circumstance will a website be launched until the balance is paid in full. The launch sequence typically takes 1-2 business days to finalize. Momentum does not launch website on Fridays or before a holiday. All change requests are billable immediately after the website has launched.
3.4 Training – All Websites come with one training session up to 1 hour prior to or after launch of the website. The training session will be performed by the project manager at Momentum’s facilities, or through a webinar. Momentum does not conduct training at client’s facilities.
Websites do not come with a training manual or documentation. Additional training / support is managed via our online ticket system. Phone support is available for all accounts.
3.5 Photography – All Website packages include up to 1 (one) stock photography image per page included in the website package, or up to $25 in stock photos. Photo editing on all stock photography and photos provided by the Client are limited to cropping and scaling. Momentum does not edit photos.
Photo galleries are limited to three (3) photo galleries per website, and up to 15 photos in each photo gallery. Momentum does not select stock photography for photo galleries. All photos in galleries added by Momentum during the build of the Website must be provided by the Client.
3.6 Deadlines – All website builds will be completed within 4 weeks unless otherwise noted. Projects deadlines may be adjusted if additional work or changes beyond the scope are required. For most projects the customer is required to provide information that is necessary for the completion of the project. During the kickoff phase the customer will be provided a list of items and dates they will be needed by. Failure to provide the necessary information may result in a delay.
4.1 Rankings – Momentum does not guarantee specific search engine ranking positions for any single keyword or phrase. Every keyword/phrase is different and ranking factors will vary from campaign to campaign.
4.2 Ad Spend – All third party ad spend (i.e. Google, Bing, Facebook) is billed directly to the Client. Momentum is not responsible for any third party ad spend charges.
4.3 Management – All campaigns come with weekly maintenance and monitoring, and a monthly report. Additional reports may be provided during a month if requested by the Client.
Availability – Coverage parameters specific to the service(s) covered in this Agreement are as follows:
- Telephone support: 9:00 A.M. to 5:00 P.M. EST Monday – Friday (except for applicable holidays).
- Email support: Monitored 9:00 A.M. to 5:00 P.M. EST Monday – Friday (except for applicable holidays).
- Support Tickets are categorized as email support. New support tickets can be submitted at (http://support.seekmomentum.com). This is the preferred method for support requests.
Hourly Maintenance – All accounts come with one hour of website maintenance per month. If the hour is not used during a month it does not carry over to the next month. Hourly maintenance support tickets that exceed the one hour per month are billed at Momentum’s standard hourly rate at ½ hour increments. For maintenance that requires over 1 hour of work to complete, Momentum will notify client with an estimate of charges to be approved by client. All hourly maintenance tasks will be invoiced on the following Monday, or working day if Monday is a holiday.
6.1 Client Content – You may be able to upload, store, publish, display and distribute information, text, photos, videos and other content on or through the Services (collectively, “Client Content”). Client Content includes any content posted by you or by users of any of your websites hosted through the Services (“Client Websites”). You are solely responsible for any and all Client Content and any transactions or other activities conducted on or through Client Websites. By posting or distributing Client Content on or through the Services, you represent and warrant to Momentum that (i) you have all the necessary rights to post or distribute such Client Content, and (ii) your posting or distribution of such Client Content does not infringe or violate the rights of any third party. Solely for purposes of providing the Services, you hereby grant to Momentum a non-exclusive, royalty-free, worldwide right and license to: (i) use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute Client Content; and (ii) make archival or back-up copies of Client Content and Client Websites. Except for the rights expressly granted herein, Momentum does not acquire any right, title or interest in or to the Client Content, all of which shall remain solely with you.
Momentum exercises no control over, and accepts no responsibility for, Client Content or the content of any information passing through Momentum’s computers, network hubs and points of presence or the Internet. Momentum does not monitor Client Content. However, you acknowledge and agree that Momentum may, but is not obligated to, immediately take any corrective action in Momentum’s sole discretion, including without limitation removal of all or a portion of the Client Content or Client Websites, and suspend or terminate any and all Services without refund if you violate the terms of this Agreement. You hereby agree that Momentum shall have no liability due to any corrective action that Momentum may take.
6.2 Email Service – Momentum uses a third-party for email service. The Client is responsible for email configuration and account maintenance. Momentum is excluded from any liability to the Client for any interruption or termination in the email service.
Momentum will troubleshoot any problems reported by the Client with their email. If the problem is due to an omission by Momentum then no charge will be made to the Client.
6.3 HIPAA Disclaimer – We are not “HIPAA compliant. ”You are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. You acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. Momentum does not control or monitor the information or data you store on, or transmit through, the Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Customers requiring secure storage of “protected health information” as defined under HIPAA are expressly prohibited from using the Services for such purposes. Storing and permitting access to “protected health information” is a material violation of this Agreement, and grounds for immediate account termination. We do not sign “Business Associate Agreements” and you agree that Momentum is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA.
6.4 Backups and Data Loss – Your use of the Services is at your sole risk. Momentum’s backup service runs once a day and once per week and overwrites any of our previous backups older than one week. Only one week of backups are kept at a time. Momentum is not responsible for files and/or data residing on your account. All data will continue to be mirrored to a secondary drive to help protect against data loss in the event of a drive failure.
6.5 Uptime – Momentum will not be liable to the Customer for any compensation in respect of any down-time that may occur with the hosting of their website(s).
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
Relationship of the Parties
8.1 Independent Contractor. Momentum is an independent contractor, not an employee of Client or any company affiliated with Client. Momentum shall provide the Services under the general direction of Client, but Momentum shall determine, in Momentum’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Momentum and the work product or Deliverables prepared by Momentum shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 Momentum Agents. Momentum shall be permitted to engage and/or use third party Momentums or other service providers as independent contractors in connection with the Services (“Agents”). Notwithstanding, Momentum shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
8.3 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Momentum, and Momentum shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Momentum.
9.1 By Client. Client agrees to indemnify, save and hold harmless Momentum from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Momentum shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Momentum provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Momentum in providing such assistance.
9.2 By Momentum. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Momentum agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Momentum’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies Momentum in writing of the claim; (b) Momentum shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Momentum with the assistance, information and authority necessary to perform Momentum’s obligations under this section. Notwithstanding the foregoing, Momentum shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Momentum.
9.3 Limitation of Liability. The services and the work product of Momentum are sold “as is.” In all circumstances, the maximum liability of Momentum, its directors, officers, employees, design agents and affiliates (“Momentum Parties”), to client for damages for any and all causes whatsoever, and client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of Momentum. In no event shall Momentum be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Momentum, even if Momentum has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
Termination – In the event of termination prior to the end of the contract period by the Client, Momentum shall be compensated for the remaining duration of the contract through the date of termination and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
Rights to Deliverables
11.1 Website Design/ Original Artwork – Momentum retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. All assets provided by the Client will remain the right of the Client. This includes website copy, photography, images, and documents.
11.2 Source Code – Momentum retains all right and title in and to any source code used in development of a website.
11.3 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Momentum shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Momentum shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Momentum from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.