ALL SERVICES ARE GOVERNED BY THE GENERAL TERMS AND CONDITIONS THAT ARE LISTED BELOW ALONG WITH THE TERMS IN THE APPLICABLE SCHEDULE(S) FOR THE SPECIFIC SERVICES THAT ARE PURCHASED.
1. INTRODUCTION. In this Service Agreement (“Agreement”), “you” and “your” refer to each customer (“Customer”) and its agents, including each person listed in your account information as being associated with your account, and “we”, “us” and “our” refer collectively to Howard Consultants, Inc. and its wholly-owned subsidiaries (“Howard Consultants”). This Agreement explains our obligations to you, and your obligations to us in relation to the Howard Consultants service(s) you purchase. By purchasing or otherwise applying for Howard Consultants service(s), you agree to establish an account with us for such services. When you use your account or permit someone else to use your account to purchase or otherwise acquire access to additional Howard Consultants service(s) or to modify or cancel your Howard Consultants service(s) (even if we were not notified of such authorization), this Agreement as amended covers any such service or actions. Additionally, you agree that each person listed in your account information as being associated with your account for any services provided to you (including, but not limited to, domain name registration services) is your agent with full authority to act on your behalf with respect to such services in accordance with the permissions granted, and that the Primary Contact and Account Administrative Contact for your account shall have the authority, without limitation, to terminate, transfer, or modify such services or your account information, or purchase additional services. Any acceptance of your application(s) or requests for our services and the performance of our services will occur at our offices in San Antonio TX, the location of our principal places of business. Except as otherwise expressly set forth in this Agreement, you agree that if you list, directly or by default, Howard Consultants as a contact for your account and/or any of the services in your account, we have the right, without notice, to remove our name and/or information from any such account or service and to replace the same with the name and/or information provided by you for any other contact associated with that account or service.
2. VARIOUS SERVICES. Sections 1 through 29 apply to any and all Howard Consultants services that you purchase, whether purchased separately or as a part of a complete solution or package bundle. The terms and conditions set forth in the Schedules of this Agreement apply only to customers who have purchased the Howard Consultants services referenced in those Schedules. In the event of any inconsistency between the terms of Sections 1 through 29 and the terms of the Schedules, the terms of the Schedules shall control with regard to the applicable Howard Consultants service. IMPORTANT NOTICE CONCERNING SERVICES THAT ARE COMBINED TOGETHER AS A PART OF A BUSINESS SOLUTION: If you purchase Howard Consultants services that are sold together as a “bundled” package (e.g., you select Web Hosting that includes both a domain name and a Howard Consultants Website design or other services, as opposed to your purchasing such services separately), termination of any part of the services will result in termination of all Howard Consultants services provided as part of the bundled package. Please see Section 10(d) of this Agreement for more information. You acknowledge and agree that some or all of the services you purchase or receive from us may be provided by one or more vendors, contractors or affiliates selected by Howard Consultants in its sole discretion. As a part of your Services, Howard Consultants may provide you access to third party functionality or services, including, but not limited to applications, widgets, RSS and other types of news, event and industry feeds, calculators, recommended copy, forms and templates that are incorporated or are offered as a part of one or more of the Services (“Third Party Functionality”). You expressly agree that any Third Party Functionality (including products, services or offering)s that are available to You as a part of any of the Howard Consultants product or services shall be used by You in accordance with the terms of any relevant third party licenses. Your failure to abide by any third party license may result in the immediate termination of your services by Howard Consultants. Furthermore, Howard Consultants does not control such Third Party Functionality and is therefore not liable for any issues of any kind relating to the Third Party Functionality. Howard Consultants reserves the right, at its sole discretion, to terminate, suspend, cancel or alter your access to Third Party Functionality at any time.
3. FEES, PAYMENT AND TERM OF SERVICE. As consideration for the services you purchased, you agree to pay Howard Consultants the applicable service(s) fees set forth on our Website at the time of your selection, or, if applicable, upon receipt of your invoice from Howard Consultants. All fees are due immediately and are non-refundable, except as otherwise expressly noted in one or more of the Schedules to this Agreement, as required by applicable law, or as such fees are billed by Howard Consultants under an invoice to a Customer that expressly permits payment for Services by a Customer within thirty (30) days after Howard Consultants has sent the Customer such invoice (“Net-30 Customers”). Howard Consultants may require a Customer to successfully complete a credit application prior to such Customer qualifying to become a Net-30 Customer. Howard Consultants will charge you a processing fee if you terminate or cancel any package prior to the completion of any limited money-back guarantee time period for that package or service (the “Processing Fee”). A Processing Fee of $34.99 will be charged for the cancellation of any one-year annual hosting, ecommerce, Website design or any other service package. Unless otherwise specified herein or on our Website, each Howard Consultants service is for a one-year initial term and renewable thereafter for successive one terms, as set forth during the renewal process. Any Howard Consultants service on a monthly billing cycle may be billed every four (4) weeks. Any renewal of your services with us is subject to our then current terms and conditions, including, but not limited to, successful completion of any applicable authentication procedure, and payment of all applicable service fees at the time of renewal and in the case of domain name re-registration, the domain name registry’s acceptance of your domain name registration. Pricing for services, renewals, and product upgrades and add-ons may vary based upon the date of your purchase. We may, at any time, activate the auto-renew service for eligible services in your account. Further, we may provide you with an opportunity to “opt in” to our automatic renewal process in accordance with the instructions (and subject to your agreement to the terms and conditions pertaining to that process) on our Website. You agree that if you are enrolled in or otherwise utilizing our auto-renew service, we will attempt to renew your service at some point less than ninety (90) days prior to its expiration. Such automatic renewal for your service(s), if successful, may be for a shorter term than the term for which you originally purchased your service(s), but in no event shall such term be longer than the term then-currently in place for the service(s). Such automatic renewal for your service(s), if successful, shall be at the then-current price for the service(s). You further agree that, to turn off the auto-renew service for any of your services with Howard Consultants, you must call our offices. You acknowledge and agree that the renewal price may be higher or lower than the price you paid for the then-current term of the service, and that we are authorized to charge your credit card or other payment method (such as PayPal®) on file for the renewal of the service(s). In any event, you are solely responsible for the credit card or payment information you provide to Howard Consultants and must promptly inform Howard Consultants of any changes thereto (e.g., change of expiration date or account number). You agree that, in any event, Howard Consultants may extend the expiration date on your credit on file with us in order to protect against unwanted expiration of your services and to allow for the automatic renewal thereof. In addition, you are solely responsible for ensuring the services are renewed. Howard Consultants shall have no liability to you or any third party in connection with the renewal as described herein, including, but not limited to, any failure or errors in renewing the services. In order to process a renewal under our auto-renew service, we may use third-party vendors for the purpose of updating the expiration date and account number of your credit card or payment method on file. Such third-party vendors maintain relationships with various credit card issuers and may be able to provide us with the updated expiration date and account number for your credit card by comparing the information we have on file with the information the third-party has on file. By selecting our auto-renew service, you acknowledge and agree that we may share your credit card or other payment method information with such a third-party vendor for the purpose of obtaining any update to your credit card expiration date, account number, or payment account. You agree to pay all value added tax (“VAT”), sales and other taxes (other than taxes based on Howard Consultants income) related to Howard Consultants services or payments made by you hereunder. All payments of fees for Howard Consultants services shall be made in U.S. dollars. Although Howard Consultants may display pricing in various currencies, transaction processing is supported only in U.S. dollars and the pricing displayed during the checkout process will be an estimated conversion price at the time of purchase. If the currency of your bank or credit card account is not U.S. dollars, you may be charged exchange rate conversion fees by your bank or credit card company. In addition, due to time differences between (i) the time you complete the checkout process, (ii) the time the transaction is processed, and (iii) the time the transaction posts to your bank or credit card, the conversion rates may fluctuate, and Howard Consultants makes no representations or warranties that (a) the amount submitted to your bank or credit card for payment will be the same as the amount posted to your bank or credit card statement or (b) the estimated conversion price will be the same as either the amount processed or the amount posted to your bank or credit card statement, and you agree to waive any and all claims based upon such discrepancies (including any and all claims for a refund based on the foregoing). You acknowledge and agree that you may be charged VAT based on the country indicated in account holder address information associated with your account. Set up fees, if any, will become payable on the applicable effective date for the applicable Howard Consultants services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less. In the event of non-payment by a Net-30 Customer on any amount of any invoice, Howard Consultants reserves the right to refer such invoice and Net-30 Customer to a collection agency in order for Howard Consultants to secure payment on the invoice. Howard Consultants may terminate any or all of the Services of a Net-30 Customer who fails to pay an invoice in a timely fashion. Howard Consultants may charge a late fee(s) to Net-30 Customers for late payment of an invoice or a reinstatement fee(s) to Net-30 Customers who wish to reinstate Service(s) that have been terminated due to non-payment.
4. ACCURATE INFORMATION. You agree to: (1) provide certain true, current, complete and accurate information about you as required by the application process; and (2) maintain and update according to our modification procedures the information you provided to us when purchasing our services as needed to keep it current, complete and accurate. We rely on this information to send you important information and notices regarding your account and our services. You agree that Howard Consultants (itself or through its third party service providers) is authorized, but not obligated, to use Coding Accuracy Support System (CASS) certified software and/or the National Change of Address program (and/or such other systems or programs as may be recognized by the United States Postal Service or other international postal authority for updating and/or standardizing address information) to change any address information associated with your account (e.g., registrant address, billing contact address, etc.), and you agree that Howard Consultants may use and rely upon any such changed address information for all purposes in connection with your account (including the sending of invoices and other important account information) as though such changes had been made directly by you.
5. PRIVACY. Our privacy statement, (a) for Websites and/or value added services purchased through www.howard-consultants.com is located on our Website at http://online-marketing-agency.org/privacy-policy.html and is incorporated herein by reference, as it is applicable to such Website purchases (other services purchased through www.howard-consultants.com, including, but not limited to, domain name registrations, are covered by the privacy statement set forth on our Web site at http://online-marketing-agency.org/privacy-policy.html), (b) for all other Howard Consultants services is located on our Website at http://online-marketing-agency.org/privacy-policy.html and is incorporated herein by reference for all such Howard Consultants services. The applicable privacy statement sets forth your and our rights and responsibilities with regard to your personal information. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Website and any such statement will be effective upon posting. You agree to periodically review our Websites, including the current version of our privacy statement. You agree that, by using our services after modifications to the privacy statement become effective, you have agreed to these modifications. You acknowledge that if you do not agree to any such modification, you may terminate this Agreement. We will not refund any fees paid by you if you terminate your Agreement with us except as otherwise expressly provided in one or more of the Schedules attached hereto. We will not process the personal data that we collect from you in a way incompatible with the purposes and other limitations described in our privacy statement. You represent and warrant that you have provided notice to, and obtained consent from, any third party individuals whose personal data you supply to us as part of our services with regard to: (i) the purposes for which such third party’s personal data has been collected, (ii) the intended recipients or categories of recipients of the third party’s personal data, (iii) which parts of the third party’s data are obligatory and which parts, if any, are voluntary; and (iv) how the third party can access and, if necessary, rectify the data held about them. You further agree to provide such notice and obtain such consent with regard to any third party personal data you supply to us in the future. We are not responsible for any consequences resulting from your failure to provide notice or receive consent from such individuals nor for your providing outdated, incomplete or inaccurate information.
6. OWNERSHIP. Except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other 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 Howard Consultants services identified herein (“Howard Consultants Intellectual Property Rights”) are owned by Howard Consultants or its licensors, and you agree to make no claim of interest in or ownership of any such Howard Consultants Intellectual Property Rights. You acknowledge that no title to the Howard Consultants Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Howard Consultants or its licensors’ service, other than the rights expressly granted in this Agreement. To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by Howard Consultants and all right, title and interest in and to each such Derivative Work shall automatically vest in Howard Consultants. Howard Consultants shall have no obligation to grant you any right in any such Derivative Work.
7. EXCLUSIVE REMEDY; TIME LIMITATION ON FILING ANY CLAIM. YOU AGREE THAT OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY HOWARD CONSULTANTS SERVICE(S) PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICE(S) DURING THE TERM OF THIS AGREEMENT. IN NO EVENT SHALL HOWARD CONSULTANTS, ITS LICENSORS AND CONTRACTORS (INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES PROVIDING SERVICES AS PART OF THE SUBSCRIPTION SERVICE FOR WEBSITES FROM HOWARD CONSULTANTS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF HOWARD CONSULTANTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN HOWARD CONSULTANTS’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES. Howard Consultants and its licensors and contractors disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data mis-delivery; (3) loss or liability resulting from acts of God; (4) loss or liability resulting from the unauthorized use or misuse of your account number, password or security authentication option; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or service(s) provided under this agreement; (6) loss or liability relating to the deletion of or failure to store email messages; (7) loss or liability resulting from the development or interruption of your Website or your Howard Consultants Website; (8) loss or liability from your inability to use our email service, Website manager service or any component of the subscription service (for websites from Howard Consultants); (9) loss or liability that you may incur in connection with our processing of your application for our services, our processing of any authorized modification to your domain name record or your agent’s failure to pay any fees, including the initial registration fee or re-registration fee; (10) loss or liability as a result of the application of our dispute policy; or (11) loss or liability relating to limitations, incompatibilities, defects, or other problems inherent in xml, xkms, or any other standard not under Howard Consultants sole control. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF OUR SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM SHALL BE FOREVER BARRED.
8. DISCLAIMER OF WARRANTIES. YOU AGREE THAT YOUR USE OF OUR SERVICE(S) OR OUR LICENSORS’ 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. WE AND OUR LICENSORS EXPRESSLY DISCLAIM 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. NEITHER HOWARD CONSULTANTS NOR OUR LICENSORS MAKE ANY WARRANTY THAT SERVICE(S) LICENSED HEREUNDER WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE OR OUR LICENSORS 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 OUR SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, 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.
9. INDEMNITY. You agree to release, indemnify, defend and hold harmless Howard Consultants and any of our (or their) contractors, agents, employees, officers, directors, shareholders, 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 Howard Consultants services or your use of such services, including without limitation infringement or dilution by you, or someone else using our service(s) 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 service(s) provided, (e) any information or data you supplied to Howard Consultants, including, without limitation, any misrepresentation in your application, if applicable, (f) the inclusion of metatags or other elements in any website created for you or by you via the Howard Consultants services, or (g) any information, material, or services available on your licensed Howard Consultants Website . When we are threatened with suit or sued by a third party, we may seek written assurances from you concerning your promise to indemnify us. Such assurances may, without limitation, be in the form of a deposit of money by you to us or our representatives to cover our fees and expenses, including but not limited to reasonable attorneys’ fees, in any such suit or threat of suit. Your failure to provide such assurances may be considered by us to be a material breach of this Agreement. We shall have the right to participate in any defense by you of a third-party claim related to your use of any of the Howard Consultants services, with counsel of our choice. We shall reasonably cooperate in the defense at your request and expense. You shall have sole responsibility to defend us against any claim, but you must receive our prior written consent regarding any related settlement. The terms of this paragraph will survive any termination or cancellation of this Agreement.
a. By You. You may terminate this Agreement upon at least thirty (30) days written notice to Howard Consultants for any reason.
b. By Us. We may terminate this Agreement or any part of the Howard Consultants services at any time in the event you breach any obligation hereunder, fail to respond within ten (10) calendar days to an inquiry from us concerning the accuracy or completeness of the information referred to in Section 4 of this Agreement, if we determine in our sole discretion that you have violated the Howard Consultants Acceptable Use Policy, which is located on our Website at http://online-marketing-agency.org/acceptable-use-policy.html and is incorporated herein and made part of this Agreement by reference, or for any other reason in Howard Consultants’ sole discretion upon written notice to you.
c. Effect of Termination. Except as otherwise expressly set forth herein or on our Website, Howard Consultants will cease charging your credit card, if applicable, for any monthly service fees as of the expiration of the monthly billing cycle in which the termination is effective. Unless otherwise specified in writing by Howard Consultants, you will not receive any refund for payments already made by you as of the date of termination, and, you may incur additional fees (in the case of a monthly or annual subscription being paid over time, as provided in various Schedules below). If termination of this Agreement is due to your default hereunder, you shall bear all costs of such termination, including any reasonable costs Howard Consultants incurs in closing your account. You agree to pay any and all costs incurred by Howard Consultants in enforcing your compliance with this Section. Upon termination, you shall destroy any copy of the materials licensed to you hereunder and referenced herein. You agree that upon termination or discontinuance for any reason, we may delete all information related to you on the Howard Consultants service, if applicable. In addition to the terms set forth herein, certain Howard Consultants services may have additional terms regarding termination, which are set forth in the applicable Schedule.
d. Effect of Termination of Solutions or Bundled Services. In addition to the terms set forth in subsection 10(c) above, if you purchase Howard Consultants services which are sold together as a solution or bundled package of Services, any termination relating to such solution will terminate all Howard Consultants services included in such bundle. For instance, without limiting the generality of the foregoing, any domain name registered with or maintained by Howard Consultants under this Agreement but not including any domain names you may have registered, either with Howard Consultants or a third-party registrar, separately and not as part of a bundled service may be cancelled and may thereafter be available for registration by another party. You acknowledge and agree that upon any termination or cancellation of your bundled services or solution the terms and conditions regarding transfer of expired domain names as described in this Service Agreement, Schedule A, paragraph 14 may apply. Upon the effective date of termination, Howard Consultants will no longer provide the solution or bundled Services to you, any licenses granted you shall immediately terminate, and you shall cease using such services immediately; provided, however, that we may, in our sole discretion and subject to your agreeing to be bound by the applicable agreement(s) and to pay the applicable fees, allow you to convert certain services included in the bundled services to stand alone services. Should you or we cancel or terminate your Services at any time prior to the completion of the one-year term, such cancellation or termination may result in an early termination fee charged to your account.
e. If you breach any term of this Agreement including, but not limited to, this terms of any Schedule, Howard Consultants may, in its sole and exclusive discretion, suspend or terminate your Services immediately and without notice to you. Service Fees may continue to accrue on suspended accounts and you will continue to remain responsible for the payment of any Service Fees that accrue during the period of suspension.
11. REPRESENTATIONS AND WARRANTIES. You agree and warrant that: (i) neither your registration nor use of the any of the Howard Consultants services nor the manner in which you intend to use such Howard Consultants Services will 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 have selected the necessary security option(s) for your domain name registration record, (iv) you are of legal age to enter into this Agreement (or you are at least 13 years of age and have your parents’ permission to apply for services hereunder); and (vi) you agree to comply with all applicable laws and regulations.
12. MODIFICATIONS TO AGREEMENT. Except as otherwise provided in this Agreement, you agree during the term of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and/or (2) change part of the Services provided under this Agreement at any time. Any such revision or change will be binding and effective after posting of the revised Agreement or change to the service(s) on Howard Consultants Websites, or upon notification to you by email or United States mail. You agree to periodically review our Websites, including the current version of this Agreement available on our Websites, to be aware of any such revisions. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice. Notice of your termination will be effective on receipt and processing by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable, except as expressly noted otherwise in one or more of the Schedules to this Agreement, but you will not incur any additional fees. By continuing to use Howard Consultants Services after any revision to this Agreement or change in service(s), you agree to abide by and be bound by any such revisions or changes. We are not bound by nor should you rely on any representation by (i) any agent, representative or employee of any third party that you may use to apply for our services; or in (ii) information posted on our Website of a general informational nature. No employee, contractor, agent or representative of Howard Consultants is authorized to alter or amend the terms and conditions of this Agreement.
13. ACCOUNT ACCESS. To access or use the Howard Consultants services or to modify your account, you may be required to establish an account and obtain a login name, account number, password and/or passphrase. You authorize us to process any and all account transactions initiated through the use of your password and/or passphrase. You are solely responsible for maintaining the confidentiality of your password and passphrase. You must immediately notify us of any unauthorized use of your password or passphrase, and you are responsible for any unauthorized activities, charges and/or liabilities made through your password or passphrase. In no event will we be liable for the unauthorized use or misuse of your login name, account number, password or passphrase. You agree that we may log off any account that is inactive for an extended period of time.
14. AGENTS. You agree that, if your agent, (e.g., your Primary Contact or Account Administrative Contact, Internet Service Provider, employee) purchased our service(s) on your behalf, you are nonetheless bound as a principal by all terms and conditions herein, including the domain name dispute policy. Your continued use of our services ratifies any unauthorized actions of your agent. By using your login name, account number or password, or otherwise purporting to act on your behalf, your agent certifies that he or she is authorized to apply for our services on your behalf, that he or she is authorized to bind you to the terms and conditions of this Agreement, that he or she has apprised you of the terms and conditions of this Agreement, and that he or she is otherwise authorized to act on your behalf. In addition, you are responsible for any errors made by your agent.
16. RIGHT OF REFUSAL. We, in our sole discretion, reserve the right to refuse to register your chosen domain name, issue you a digital certificate, or register you for other Howard Consultants service(s), or to delete your chosen domain name within the first thirty (30) calendar days from receipt of your payment for such services. In the event we do not register your chosen domain name, issue you a digital certificate, or register you for other Howard Consultants service(s), or we delete your chosen domain name or other Howard Consultants service(s) within such thirty (30) calendar day period, we agree to refund any applicable fee(s) you have paid. You agree that we shall not be liable to you for loss or damages that may result from our refusal to register your chosen domain name, refusal to issue a digital certificate, the deletion of your chosen domain name or refusal to register you for other Howard Consultants service(s).
17. NOTICES AND ANNOUNCEMENTS. (a) Except as expressly provided otherwise herein, all notices to Howard Consultants shall be in writing and delivered via overnight courier or certified mail, return receipt requested to Howard Consultants, Inc., Attention: Legal Department, 17239 Shavano Ranch Suite 9204, San Antonio TX 78257. All notices to you shall be delivered to your mailing address or email address as provided in your account information (as updated by you pursuant to this Agreement) or to any email address associated with your domain name registration(s) with Howard Consultants. (b) You authorize us to contact you as our customer via telephone, at the number provided by you in your account information (as updated by you pursuant to this Agreement), which telephone number is incorporated herein by reference, email or postal mail regarding information that we deem is of potential interest to you. Notices and announcements may include commercial emails, telephone solicitations and other notices describing changes, upgrades, new products and services or other information pertaining to Internet security or to enhance your identity on the Internet and/or other relevant matters.
18. SEVERABILITY. You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect.
19. ENTIRE AGREEMENT. You agree that this Agreement, the rules and policies incorporated by reference in this Agreement (including, without limitation, the dispute policy and the privacy statement) are the entire, complete and exclusive agreement between you and us regarding our services and supersede all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement, including, without limitation, any purchase order provided by you for the services.
20. ASSIGNMENT AND RESALE. Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the services (or portion thereof) without Howard Consultants prior express written consent.
21. GOVERNING LAW.
a. You and Howard Consultants agree that in the unlikely event a dispute or controversy arises from this engagement, I would like for us to be able to resolve the matter peacefully, sparing us any undue delay or expense, including the cost of paying litigation attorneys. Accordingly, by this contract, you agree as follows:
As soon as a grievance, dispute, or controversy arises, the complaining party will send the other(s) a letter outlining the complaint. All signatories must then meet in person or by telephone within 14 days. If no resolution is reached at that meeting, all signatories agree to submit the matter within 30 days to informal mediation with a mediator selected by all parties and paid by the complaining party. If this mediation does not resolve the matter, all signatories agree to submit the matter to binding arbitration, to be conducted in San Antonio, Texas by and under the rules of the American Arbitration Association. This paragraph defines disputes and controversy, as other than, legal fees not paid for work performed on behalf of client.
b. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement.
c. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
22. AGREEMENT TO BE BOUND. By applying for a Howard Consultants service(s) through our online application process or otherwise, or by using the service(s) provided by Howard Consultants under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
23. INDEPENDENT PARTIES. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise. Except as otherwise expressly stated herein, we agree there shall be no third party beneficiaries to this Agreement.
24. WAIVER. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Howard Consultants. The remedies of Howard Consultants under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.
25. EXPORT RESTRICTIONS. You acknowledge and agree that you shall not import, export, or re-export directly or indirectly, any commodity, including your products incorporating or using any Howard Consultants services in violation of the laws and regulations of any applicable jurisdiction.
26. U.S. Government Users. In the event any software is provided by Howard Consultants to a U.S. Government User, the software and accompanying documentation which are used as part of the Howard Consultants service are “commercial items,” as such terms are defined at 48 C.F.R. 2.101 (Revised Oct 2002), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Revised Oct 2002) and is provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (Revised Oct 2002), all U.S. Government entities acquiring the use of the Service and accompanying documentation shall have only those rights set forth herein.
27. FORCE MAJEURE. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over Howard Consultants, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Howard Consultants may immediately terminate this Agreement.
28. HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
29. SURVIVAL. In the event this Agreement terminates as provided herein, Sections 1, 2, 3, 6, 7, 8, 9, 10(c), 10(d), 11, 14, 15, and 17 through 29 of this Agreement shall survive such expiration or termination.
SCHEDULE A TO HOWARD CONSULTANTS SERVICE AGREEMENT
WEB HOSTING SERVICES
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 Web Hosting Services (as defined below).
1. Description of Service
Howard Consultants may make available for purchase, from time to time, a variety of hosting or hosting related packages as published on the Howard Consultants website (collectively, “Web Hosting Services”). Subject to the terms and conditions of this Agreement (which includes this and all other applicable Schedules) and during the term of this Agreement, Howard Consultants agrees to provide to you the Web Hosting Services you purchase during the sign-up process. Howard Consultants reserves the right to amend its Web Hosting Services offerings and to add, delete, suspend or modify the terms and conditions of the Web Hosting Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
2. Fees and Payment Terms
2.1 Web Hosting Services shall be paid by valid payment method (acceptable to Howard Consultants) at the time of purchase at the fee set forth on our Website. Your monthly and, if you’ve selected our “auto-renew” feature, annual payments for Web Hosting Services shall be automatically charged to the payment method provided by you at the time of your purchase (with such payments being charged in advance on a monthly or annual basis, as applicable) each month or annually, as applicable (“Web Hosting Services Fee”), and you hereby agree that Howard Consultants is authorized to so charge the payment method on file. Howard Consultants, in its sole discretion, shall determine the prices it will charge for the Web Hosting Services, and the terms and conditions applicable to the same, and Howard Consultants may, upon providing prior written notice to you by email, amend such pricing and/or terms and conditions. If you do not agree to any such pricing and/or terms and conditions change(s), you may terminate this Agreement (or cancel your Web Hosting Services, as applicable) as provided herein within thirty (30) days from the date of your notice; otherwise all such changes shall be effective with respect to your account, and you agree that we are authorized to charge your credit card for any new Web Hosting Services Fee, on the next monthly or annual (as applicable) payment cycle.
2.2 In addition to recurring service fees, Howard Consultants may charge set up fees and other one-time fees for any optional services as set forth on our Website and/or described in this Schedule (collectively “One-time Fees”). Billing for One-time Fees shall be by valid credit card (acceptable to Howard Consultants) at the time of purchase at the price set forth on our Website. Your One-time Fees shall be automatically charged to the credit card provided by you (and acceptable to Howard Consultants) at the time of your purchase, and you hereby agree that Howard Consultants is authorized to so charge your credit card. Howard Consultants, in its sole discretion, shall determine the prices it will charge for all One-time Fees.
2.3 Howard Consultants will charge you a Processing Fee if you terminate or cancel any package prior to the completion of any limited money-back guarantee time period for that package. You authorize Howard Consultants, in its sole discretion, to charge the credit card provided by you at the time of your purchase or forward an invoice to you immediately upon any such termination or cancellation of an annual Web Hosting Services package for the amount of the Processing Fee.
2.4. Howard Consultants will suspend your account if you request a chargeback on your credit card for automatic charges to your credit card for excess data transfer usage (see Section 6 below).
3. Term and Termination
3.1 Term. Your Web Hosting Services shall be either (i) on a month-to-month basis for successive monthly periods or other similar billing cycle, (ii) if you have selected our auto-renew feature, on a year-to-year basis for successive yearly periods, or (iii) if you have not selected our auto-renew feature, for a one-time annual period, all unless either party notifies the other of termination or cancellation in accordance with this Agreement, and subject to the then-current terms and conditions of this Agreement at the time of any renewal of your Web Hosting Services.
3.2 Cancellation. Subject to your obligation to pay any applicable Processing Fees, you may cancel your Web Hosting Services at any time. To cancel your Subscription Service you must notify Howard Consultants. Your Web Hosting Services will be canceled as of the expiration of the monthly billing cycle in which your notice was received. Any fees already paid to Howard Consultants shall not be reimbursed to you (except for money back guarantees that may apply to your services). Unless terminated earlier as provided herein, this Schedule, and the Agreement if you have no other services with Howard Consultants, will be terminated as of the cancellation of your Web Hosting Services.
3.4 Upon any termination of this Schedule or the Agreement for any reason, Sections 2, 3.4, 4, 5, 6, and 7 shall survive termination.
4. Additional Warranty Disclaimers and Limitations of Liability
4.1 ADDITIONAL DISCLAIMER. HOWARD CONSULTANTS IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICES PROVIDED BY HOWARD CONSULTANTS.
4.2 Information obtained by you from the Internet may be inaccurate, offensive or in some cases illegal. Howard Consultants has no control over information contained on the Internet and accepts no responsibility for any information that you may receive or transmit via the Internet.
4.3 You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you disseminate or display in connection with your use of the Web Hosting Services or obtain from the Internet.
4.4 You agree that if Howard Consultants takes any corrective action under this Agreement in response to your or your end users’ actions or failures to act, that corrective action may adversely affect you or your end users and you agree that Howard Consultants shall have no liability to you or your end users due to any corrective action taken by Howard Consultants.
4.5 You agree that Howard Consultants has no obligation to back-up any data related to your website unless Howard Consultants expressly agrees otherwise in writing (or has expressly stated so on our Website). You agree that you will regularly back-up your data whether or not Howard Consultants agrees to or actually does back-up any data.
5. Restrictions on Use
5.1 Howard Consultants does not intend to and shall have no obligation to systematically monitor the content that is submitted, stored, distributed or disseminated by you via the Web Hosting Services (the “Content”). Your Content includes content of your end users and/or users of your website. Accordingly, you are responsible for your end users’ content and all activities on your website. Howard Consultants, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, removal of all or a portion of your Content and suspension and/or termination of your Web Hosting Services, in the event of notice of any possible violation of this Agreement or the AUP by you or your end users. You agree that Howard Consultants will have no liability to you or any of your end users due to any corrective action that Howard Consultants may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action. You agree to the additional restrictions of use for the ancillary services provided by Howard Consultants in conjunction with the Web Hosting Services that are found in other schedules to this Agreement.
5.2 You warrant that your Content does not violate or infringe any copyright, trademark, patent or intellectual or other proprietary property right of any third party or contain any obscene or libelous material or otherwise violate any law or regulation.
5.3 Your use of networks or computing resources provided to Howard Consultants by third party providers and made available to you as part of the Web Hosting Services is subject to the respective permission and usage policies of such third parties.
5.4 You expressly (i) grant to Howard Consultants a license to cache the entirety of your Content and your Website, including content supplied by third parties, hosted by Howard Consultants under this Agreement, and (ii) agree that such caching is not an infringement of any of your intellectual property rights or any third party’s intellectual property rights.
5.5 You agree that you will not exceed the bandwidth or storage space limits applicable to the Web Hosting Services purchased, as set forth on our Website. You agree that if you do exceed either of such limits, Howard Consultants, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, deletion of part or all of your content, assessment of additional fees, suspension and/or termination of your Web Hosting Services. You agree that Howard Consultants will have no liability to you or any of your end users due to any corrective action that Howard Consultants may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action. Furthermore, Howard Consultants’ hosting servers are not an archive and Howard Consultants shall have no liability to you or any other person for loss, damage or destruction of any of your content. You shall at all times, use the space provided to you on Howard Consultants’ hosting servers exclusively for serving up and deploying your website. You shall not use the space provided to you on Howard Consultants’ hosting servers in any way which may result in an excessive load on the Howard Consultants’ equipment and/or network, including but not limited to installing or running web proxies, using your allotted space as online backup or storage, or mirroring mass downloads. Use of the space provided to you on Howard Consultants’ hosting servers and your services shall be in a manner consistent with the terms and conditions of this Agreement and shall not in any way impair the functioning or operation of Howard Consultants’ equipment or network. Should your use of the Howard Consultants’ services result in a violation of this or any other part of this Agreement, in Howard Consultants’ sole discretion, Howard Consultants may suspend your services until the cause of any such violation is determined and resolved.
5.6 For the “Unlimited” shared Web Hosting Services, there is no bandwidth or storage space limit. However, “Unlimited” shared Web Hosting Services are not intended to support the hosting needs of large enterprises that require large bandwidth and storage capabilities. To insure that our shared hosting is reliable and available for all of our small business users, your usage cannot adversely affect the performance of other customers’ sites. Using our “Unlimited” shared Web Hosting Services primarily as online storage space for archived electronic files is prohibited. You agree that if your bandwidth and storage space usage adversely affects other customers on our shared hosting platform, Howard Consultants may suspend or terminate your Web Hosting Services without liability.
6. Data Transfer Overage Charges
6.1 You agree that you will not exceed the data transfer (bandwidth) or storage space limits applicable to the Web Hosting Services purchased, as set forth on our Website. You agree that if you do exceed either of such limits, Howard Consultants, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, assessment of additional fees and/or suspension and/or termination of your Web Hosting Services. You agree that Howard Consultants will have no liability to you or any of your end users due to any corrective action that Howard Consultants may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
6.2. Excess bandwidth usage cannot be purchased by you in advance.
6.3. If you exceed your data transfer limit in the last 24 hours of any given month, Howard Consultants will not charge you additional fees so long as the data transfer overage does not exceed 25GB.
6.4. For the VPS Hosting, you agree that Howard Consultants may automatically charge your credit card for the bandwidth overage fees. You may opt-out of automatic charges to your credit card by contacting Customer Service. If you opt out of the automatic overage charges, you risk account suspension if you exceed your allotted amount.
7. Other Terms and Conditions
7.1 The Web Hosting Services we provide under this Agreement may incorporate other products or services that we provide, or products or services provided by third parties with whom we have a business relationship (“Additional Services”). Your use of these Additional Services may be subject to a separate application and/or approval process and you reaching separate agreements with us or with third parties. (For example, if you desire to accept credit card payments through a website you establish via the Web Hosting Services, your relationship with the third-party merchant account provider may be subject to an application and approval process and you reaching a separate agreement with such provider.) Some of these separate agreements may require you to pay fees in addition to the fees that you pay us for the Web Hosting Services. We will strive to let you know when your receipt of Additional Services will require you to enter into a separate agreement, whether with us or with a third-party, and whether such separate agreement will require you to pay additional fees. Additionally, depending on the services you elect to receive, you may be responsible for establishing and maintaining a commercial banking relationship with a financial institution. The terms of any such relationship shall be between you and the financial institution and will not necessarily reflect or incorporate terms of any agreements we may have with the institution. Further, you agree that our third party vendors providing any services as part of the Web Hosting Services, and their successors, are intended third-party beneficiaries under this Agreement and will be entitled to enforce your obligations under this Agreement. Finally, you acknowledge and agree that other Schedules in this Agreement may apply to the various services included in your Web Hosting Services package (for example, Schedules related to domain name registration, email, Private Registration, etc.), and that you have read and you agree to be bound by the additional terms and conditions in those Schedules.
7.2 You agree that any domain name directory, sub-directory, file name or path (e.g. ) that does not resolve to an active web page on your Website being hosted by Howard Consultants, may be used by Howard Consultants to place a “parking” page, “under construction” page, or other temporary page that may include promotions and advertisements for, and links to, Howard Consultants’ Website, Howard Consultants product and service offerings, third-party Websites, third-party product and service offerings, and/or Internet search engines. You agree that Howard Consultants may change the content and/or appearance of, or disable any of these temporary pages at any time, in its sole discretion, and without prior notice.
SCHEDULE B TO HOWARD CONSULTANTS SERVICE AGREEMENT
ONLINE MARKETING SERVICES
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, SEO Optimizer, Services (as defined below).
1. Description of Service
1.1 Howard Consultants may make available for purchase, from time to time, a variety of online marketing services in the form of our Marketing solution, Online Marketing and/or SEO Optimizer product, including online banner advertisement creation and publication, pay per click search engine advertising, email communication tools, registration with several World Wide Web search engines and Internet Yellow Pages Directories (as described on our Website), search engine optimization, link building, search submissions, keyword optimization, local, regional and national directory listing and submission, Website and site map analysis, call-tracking, search engine optimized press release service, search engine visibility and/or premium listings services (collectively, “Online Marketing Services”, or “Services”), as published on the Howard Consultants Website. Subject to the terms and conditions of this Agreement (which includes this and all other applicable Schedules) and during the term of this Agreement, Howard Consultants agrees to provide to you the Online Marketing Services you purchase during the sign-up process. Howard Consultants reserves the right to amend its Online Marketing Services offerings and to add, delete, suspend or modify the terms and conditions of such Online Marketing Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
1.2 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, Howard Consultants 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 the sole responsibility of the person from which such Content originated. This means that you, and not Howard Consultants, are entirely responsible for all Content that you upload, post, email or otherwise transmit via the Online Marketing Services.
2.3 In addition to all other restrictions under this Agreement and the Acceptable Use Policy, you agree to not use the Online Marketing Services to upload, post, email or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).
2.4 You acknowledge that Howard Consultants does not pre-screen Content, but that Howard Consultants and its designees shall have the right (but not the obligation) in their sole discretion to refuse or move any Content that is available via the Service. Without limiting the foregoing, Howard Consultants and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Howard Consultants or submitted to Howard Consultants.
2.5 You understand that the technical processing and transmission of the Online Marketing Services, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
2.6 Howard Consultants reserves the right to reject any advertisements from entities for any reason, including those products and/or advertisements deemed to be inappropriate in any way. This includes advertisements or links to pornography, violence, vulgar language, dating/personal ad sites, mp3 sites, gambling, racial/hate promotion, foreign language, etc.
3. Fees and Payment Terms. Payment for the Online Marketing Services selected by you will be on a pre-paid basis, due and payable at the beginning of the term, and will continue billing at the beginning of any and all subsequent terms until such time as you or we terminate the Online Marketing Services. To participate in the premium listings service (the “Listings Service”) (as a part of the Online Marketing Services and in particular the Paid Search Advertising Services further defined in Schedule P to this Agreement), you must be an active, current Howard Consultants account holder. You agree to pay us or our third party vendors for all charges incurred by your use of the Listings Service. For charges generated through the delivery of clicks to your site, you will be charged based on actual clicks and pay all charges in US Dollars. All charges are exclusive of taxes. Charges are solely based on our (or our third party vendors’) click measurements. For all pay-per-click or similar Online Marketing Services with fees paid in advance based on projected advertising spend and related service and/or management fees, for all amounts not spent on pay-per-click or other advertising and not otherwise allocated towards related service or management fees, such amounts may not rollover or be returned, but instead may be retained by Howard Consultants.
You are responsible for paying all taxes and government charges, and reasonable expenses and attorney fees we incur in any action associated with the collection of service fees. You agree to submit any claims or disputes regarding any charge to your account in writing to us within sixty (60) days of such charge otherwise such claim or dispute will be waived and such charge will be final and not subject to challenge.
Any one-time service fees charged to your account and any initial deposit, the value of which will be credited to your account, are non-refundable. When your funds on deposit with us fall below the minimum level for active accounts, defined as 20% of your estimated monthly click charge for the PPC Services, we will automatically bill your credit card, charge card, or debit card on file the amount equal to the minimum monthly amount (defined as your Average Daily Spend amount multiplied by 30 days), as specified by you during the Listings Service signup. We reserve the right to change the minimum level for active accounts at any time. You have the option of terminating your Listings Service at any time. Such termination of your Listings Service shall be effective at the end of your normal billing cycle, or when your funds on deposit are exhausted. At time of notice of termination, we reserve the right to allocate any or all of your available funds to any outstanding charges or fees due us. Upon the effective date of termination, your listings will be removed from the search engines.
4. Your License. Howard Consultants grants you a personal, non-transferable and non-exclusive right and license to use on a single computer the object code of any software provided to you by Howard Consultants in connection with the Online Marketing Services (“Software”); provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Online Marketing Services. You agree not to access the Online Marketing Services by any means other than through the interface that is provided by Howard Consultants for use in accessing the Online Marketing Services.
5. Specific Restrictions. In certain instances involving the Online Marketing Services, Howard Consultants will perform industry research in order to provide keyword phrase choices to you. During these research activities, Howard Consultants may contact you via email with information that will require a response. Response will be necessary for the project to move forward in a timely manner. In these situations, if a response is not received from the client for more than 60 days, the project is considered “abandoned” and payment is surrendered in full. Howard Consultants will not conduct any type of intellectual property review or analysis of recommended keyword phrases and will further conduct no review of any third party rights to recommended keyword phrases. You agree it is entirely your responsibility and obligation to conduct an analysis of any recommended keyword phrases to determine whether any other party may have any type of rights to the recommended keyword phrases. Howard Consultants will not be held liable for any claims arising out of your choice or lack thereof of recommended keyword phrases. You agree that you assume all risks for trademark infringement, brand infringement, intellectual property infringement or other claims based on your choice of keyword phrases. Any tutorial that is provided on a 30-minute or 60-minute basis as a part of the Online Marketing Services is for information purposes only. These tutorials are one time only and if the tutorial is cut short for any reason by you prior to the end of the 30-minute or 60-minute session no continuation of the tutorial is permitted. Howard Consultants has the right to terminate the tutorial at the end of either the 30-minute or 60-minute session. Howard Consultants may also terminate any tutorial if a Customer is abusive, makes threats, indicated that the Customer is involved in unlawful activity or poses a risk in any way to Howard Consultants.
6. Content. Customer takes full responsibility for all content suggested or supplied to Howard Consultants for inclusion on web document(s), advertisement(s) or any form of media. Customer is held legally liable for the supplied content and all Content on Customer’s Website, including, but not limited to, recommended content and content created by Howard Consultants for a Customer’s Website. Customer agrees to abide by all local, state, national, and international laws including, but not limited to, trademarks, patents and copyrights. Customer agrees to all content created by Howard Consultants to be hosted on customer’s website for the purposes of achieving increased search engine visibility. Customer agrees once the Services begin, additional content may be added to the site by Howard Consultants and code may be adjusted to optimize for search engines. Any requested changes to graphics, text, web pages, and forms or any other requests extending outside of the scope of the project (as defined in the pricing plans) will not be included or considered without advanced payment of $120/ hour. Customer gives Howard Consultants full authority as a part of this service to create, add, delete, revise or upload content, including approved keywords, onto the Customer’s site in order to optimize your site for search engines.
7. Changes and Alterations to Customer Websites. In order to keep your website ranking in top search engine or online positions or to develop, create and build links we prefer to have full access (read/write permissions) to your Website content as found on your Website server. This access may be provided in the form of FTP login credentials, or access credentials to a Content Management System (CMS) used on your Website. This will allow us to make any necessary changes to your site to optimize your website for search engine or online directory rankings. Ongoing access may be required if the level of service you have purchased includes regular optimization of your website over time. You agree to allow Howard Consultants to perform a complete analysis of your site, including, but not limited to, its code, text and links. You further agree that Howard Consultants may make adjustments as needed to enable the site, code, text or links to be located by search engines. Howard Consultants will make an effort to work with you to notify you of any modifications, adjustments or additions that are made to your site during this process.
We must have the ability to optimize the layout and keyword density of your web pages. If you plan to make any significant design changes to your site within six months of your Online Marketing Services (optimization) order, you must notify Howard Consultants before work commences. If Howard Consultants is not notified, a charge may be applied for any update of custom pages that you make. In the event that we are not provided full FTP or CMS access to the Website server, we will send you the content and any changes and you will be fully responsible for uploading such content and changes to your Website.
8. Feedback. Customer agrees to provide via email to Howard Consultants approval of the keyword phrase list within a reasonable period of time (as determined by Howard Consultants in its sole discretion and indicated to you in such email). If feedback is not received by Howard Consultants within such time period, you agree that Howard Consultants reserves the right to finalize recommended keywords and Howard Consultants will not be held liable for any claims that may arise from the finalization of the keyword phrases or any additional costs required to extend the project timeline. You understand and agree that your failure to respond to the email that contains the recommended keyword phrase list within the time period outlined in the email is considered an approval of the recommended keyword phrase list thereby giving Howard Consultants the authority to submit and optimize your site with such keyword phrase(s) contained on the list.
9. Links. You give Howard Consultants full authority and rights to your website in order to develop appropriate links, including but not limited to, the text, content and placement of links on your site. You give Howard Consultants the right to establish an email account on your behalf for the purpose of communicating with third parties in order to place links to your site on third party sites. You also give Howard Consultants the full authority to contact third parties by any means to place links on third party sites. Customer agrees that links that are established by use of the Services on third party sites may be removed or deleted by third parties. It is Howard Consultants intention when it places links on third party sites for those links to be permanently placed on such third party sites, but Howard Consultants can not control the actions of third parties that may remove or delete a link that Howard Consultants has placed. Customer expressly agrees that Howard Consultants has no liability and no responsibility for links to a Customer’s site that are removed or deleted by third parties on third party sites. Howard Consultants disclaims all liability for any and all claims that may arise against Customer or a third party as a result of a link or the text of a link that is on any site on the internet or that has been placed on a site as a part of the Services. Customers understands and agrees that Howard Consultants will not conduct any type of intellectual property search, including trademarks or copyrights, as a part of the Services and therefore Customer assumes all risks related to intellectual property infringement or violation of any third party’s rights.
10. Press Release Services. The Press Release Service means the service offered by Howard Consultants in creating content that is dispersed through third party press release distribution channels. As a part of the press release service for Online Marketing Services you agree to work with Howard Consultants, answer any questionnaires that may be sent to you regarding your site and also permit a full analysis of your site in order for a press release to be written. Upon finalization of the press release, Howard Consultants will submit the press release to certain major internet news sites and will work to distribute the press release through third parties. The press release service is dependent on various third parties and Howard Consultants is not in any way responsible for the failure of these third parties to perform in their responsibilities.
11. Refunds, Limitations and Guarantees.
11.1 Due to the nature of online marketing, Howard Consultants cannot offer guarantees with its Online Marketing Services and, as such, all payments are nonrefundable.
11.2 For cretain applicable optimization packages, Howard Consultants will work to have your website listed in top ten listings across multiple search engines. Most engines will index your site in about three (3) months, but it takes time to gain popularity and ranking. The search engines included are: AOL®, AlltheWeb®, AltaVista, Ask.com (formerly known as AskJeeves.com), Google®, Hotbot®, Lycos®, Bing.com (MSN), Netscape®, and Yahoo!®. Your selection of keyword phrases that are competitive phrases may impact the ability for your Website to acquire top listings in all or some search engines. The web is very unpredictable and dynamic. In no event will Howard Consultants will be liable for any damages, for any cause, arising from provided services, including any lost profit, lost savings, or other incidental or consequential damages, even if another party has advised Howard Consultants of the possibility of such damages, or for any claim.
11.3 Any Website downtime of one day or more will impact your services as search engines may remove your listing if they cannot find your site. Cloning your Website after the promotion has been uploaded will adversely impact your Website’s ability to acquire top listings in search engines because search engines penalize and ban sites for this practice. Any website that contains adult content is not eligible for Online Marketing Services.
You may need to use multiple domains for commonly misspelled versions of your domain name, or for other good domain names that you do not want your competitors to get. The only way to point multiple domains to the same website in a search engine friendly manner is through a 301 redirect. If you have purchased multiple domains and simply redirect them to the same IP address (website) without using a 301 redirect, this may be considered by some search engines to be spam because you’re trying to index multiple website domain names that point to the same physical content on the server. Doing this will risk a duplicate content penalty in some search engines.
11.4. From a search engine perspective, 301 redirects are the only acceptable way to redirect URLs. If Howard Consultants finds that you are not using a 301 redirect to accomplish this task, your Website may not be able to acquire top listings in search engines. Search engines will index only your site’s main URL, but will transfer link popularity from the additional domains to the main one.
11.5 Howard Consultants’ Marketing Services do not include the paid submission fees that some search engines charge for inclusion. We are not affiliated with these submission services in any way. You may opt to pay these fees directly to the search engine for inclusion.
11.6 The press release service is not available for certain types of sites including pharmacy sites, gambling sites and adult sites. Howard Consultants reserves the right to decline any or all services to any site based upon site content.
11.7 In order for Howard Consultants to provide the best possible search engine optimization services, we need to work together as a team. You agree that you will let us know if you make any changes to your website pages, especially the homepage. As the entrance to your site, this page is critical. You agree to inform us of any substantial edits or changes to your site within two days. Search engine optimization fees to repair altered pages are billed at $120 per hour.
11.8 For each press release to be generated and distributed you must initiate the Press Release Service by completing a press release questionnaire sent to you via email. If you do not provide a completed questionnaire within one year of purchasing the service, your Press Release Service will expire. If you do not initiate the Press Release Service with a completed questionnaire and cancel the Press Release Service prior to expiration, you may be eligible for a 100% refund of your Press Release Service payment. If you do not initiate the Press Release Service with a completed questionnaire and cancel the service after expiration, you may be eligible for a 50% refund on the individual retail price (at the time of purchase) of your unused press releases. We will refund all charges to the same form of billing you used for your purchase of the Press Release Service. If you have initiated the Press Release Service by completing the questionnaire at any time, all payments on that press release are non-refundable. An expired Press Release Service may be honored for fulfillment at the discretion of Howard Consultants.
11.9 Howard Consultants may at any time terminate the Online Marketing Services, terminate this Agreement or cancel any online marketing. Howard Consultants will notify Customer by email of any such termination or cancellation which shall be effective immediately. Upon cancellation or termination Customer shall remain liable for any amounts due through the date of such cancellation or termination. Should you desire to cancel Online Marketing Services, you must email Howard Consultants at email@example.com at least seven (7) business days prior to the renewal of your existing service. Any other forms of attempted cancellation are not valid. Cancellation of Online Marketing Services will occur within 48 hours of receipt of request. Cancellations may be subject to a cancellation fee. Cancellation requests made after renewal of the specific Online Marketing Service(s) will be valid only at the end of the then current 30-day billing cycle, at which time such Online Marketing Service(s) will be canceled. Upon cancellation of your Online Marketing Service(s), Howard Consultants will not provide any refunds to you.
12. Time Constraints. Unless otherwise specified in writing by Howard Consultants, all projects will be considered completed upon delivery of the completion notification email. Any additional work will be considered out of the scope of the initial project and subject to hourly charges.
13. Set-up Fees. There are set-up fees related to the Services that are non-refundable. These and other set-up fees are required as Howard Consultants often must pay for services, software, hardware or labor up front as soon as a Customer purchases the Services.
14. Additional Fees. Customer agrees that any additional assistance with the Services will be billed by Howard Consultants to the Customer at the rate of $120/hour. Customer also agrees to pay $120/hour for any changes, modifications, updates, and optimization alterations that exceed the scope of the project.
15. Local Search Visibility. In addition to the other terms of this Agreement and this Schedule O, Customers who purchase the Local Search Visibility feature of Marketing Services understand and agree that as a part of this package Howard Consultants will offer applications and other related functionality that will generate or recommend keyword phrases that the Customer may consider using. Customer agrees not to abuse such applications by submitting multiple repeated requests. Howard Consultants reserves the right to terminate, suspend, revoke or cancel access to these and other applications if the Customer abuses them in any way. Customer also acknowledges and agrees that Howard Consultants or any of its partners do not perform any type of intellectual property search or screen on any recommended keyword phrases. Consequently, Customer accepts that it assumes all risk and liability for using recommended keyword phrases that are generated through provided applications or are otherwise recommended by Howard Consultants. Howard Consultants is not responsible for any claims by any parties involving Customer’s use of recommended keywords that may be in violation of any third party’s rights (including intellectual property rights). Customer expressly authorizes Howard Consultants to submit the Customer’s site and information related to such site to search engines and/or directories and to set the Customer’s site for automatic re-submission to search engines and/or directories at a frequency determined by Customer updates to their information. If the submission fails due to errors in the customer’s information, the Customer assumes the responsibility for correcting their information. Customer expressly understands that the list of search engines and directories to which Howard Consultants submits Customer’s site and information related to such site may change at any time and therefore Customer expressly authorizes Howard Consultants to change search engines and/or directories for submission purposes when the need may arise. From time to time, Howard Consultants may make certain search engine or online directory ranking reports available to a Customer as part of this service. Such reports may contain inaccurate or incomplete information and such reports may also not contain updated information. Howard Consultants is not responsible for any errors, omissions or other issues that may arise from such reports or the submission of Customer’s site to any search engine or directory. If Customer does not want Howard Consultants to submit the Customer’s site for any reason, Customer must notify Howard Consultants by telephone and email. For any Local Search Visibility package(s), Customers on monthly payment terms will be billed the monthly fee each month in advance. This method of billing will apply to all Customers whether or not a Customer’s Website is live.
SCHEDULE C TO HOWARD CONSULTANTS SERVICE AGREEMENT
PAID ADVERTISING SERVICES
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 Paid Advertising Service(s) (“Advertising Services”) (as defined below) which may be part of the Web marketing solution.
1. Description of the Service. For purposes of this Schedule P to the Service Agreement, the Advertising Services shall mean the services whereby Customers wishing to advertise and drive traffic to their Website(s), services or products, pay for advertisement listings (including targeted local advertising) and/or phone numbers to appear in the search results generated by Howard Consultants and/or its search engine partners in response to a keyword search term and such advertising campaigns are managed, tracked and monitored via a platform that provides reports, lead and call tracking, and in some instances call recording for sales calls. Advertising Services include any advertising which may be categorized as Pay Per Click Services (“PPC Services”), Pay Per Impressions Services (“PPM Services”), Pay Per Action Services (“PPA Services”), and Pay Per Call Services. Advertisements managed through these Advertising Services may appear on any variety of media, including but not limited to Internet search engine results. Other media types include content networks such as online news or article sites and online video sites, as well as media such as mobile devices. Registering for Advertising Services does not in any way guarantee that all or any of the search terms (“keywords”) submitted will be accepted by Howard Consultants or a third party provider. Howard Consultants reserves the right, at any time and from time to time to reject and/or remove any keywords submitted by Customers. As used in this agreement, the terms “Client”, “Customer” and “You” mean you and the company or entity that you represent. You agree that Howard Consultants may exchange information pertaining to your Advertising Services with third parties including, but not limited to search engines, in order for Howard Consultants to deliver such services for you.
2. Display of Advertisement and Landing Page. Customer agrees, except where it is receiving Advertising Services under our PPC Optimizer services, that it shall work with Howard Consultants on all of the text, images, video, audio and other data which Howard Consultants will use to comprise the advertising creative that Customer intends to have displayed through the Advertising Services (“Advertisement”) as well as any related landing page(s). All such references to landing pages in this Schedule shall also include customer built landing pages by Howard Consultants. Customer hereby grants to Howard Consultants a non-exclusive, royalty-free, worldwide right and license by all means and in any media to use, create, reproduce, distribute, modify for technical purposes, publicly perform, publicly display and digitally perform and render such Advertisement and any corresponding landing pages and all its constituent parts across the internet and to submit such Advertisement to search engines and local listing services. Customer agrees that it shall bear all responsibility and liability for any and all claims related to the Advertisement or copy, images, video, audio, data or text that relate to the Advertisement or landing page. Customer further agrees that Howard Consultants shall have no liability for any and all claims that relate to any Advertisement, landing page or copy, images, video, audio, data or text that relate to the Advertisement or landing page. You are fully responsible for the landing page(s) or the redirect website which links to your advertisements.
3. Advertising Guidelines. Customer acknowledges and agrees that in order for Howard Consultants to maintain the integrity of the Service and the Advertising Services, Customer is subject to this Schedule P to the Service Agreement. Howard Consultants may, in its sole discretion, reject, cancel or remove at any time any Advertisement from the Advertising Services for any reason without prior notice to the Customer. Howard Consultants will not be liable in any way for any rejection, cancellation or removal of any Advertisement. Customer represents and warrants that: (a) it has all necessary authority to enter into this Agreement; (b) it has all necessary licenses, permits, clearances and/or rights to use the Advertisements; (c) it will comply with all applicable laws; (d) any use and display of the Advertisements shall not: (i) infringe or violate any patent, copyright, trademark, service mark, trade secret, or other intellectual property right of a third party, including any right of privacy or publicity; (ii) violate any federal, state or local laws or regulations or foreign laws; (iii) contain material that is pornographic, obscene, defamatory, libelous, fraudulent, misleading, threatening, hateful, or racially or ethnically objectionable; (iv) be likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity, or (v) contain viruses, Trojan horses, trap doors, back doors, worms, time bombs, cancelbots or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system data or personal information.
4. Non-Refundable Setup Fee and Other Fees. Except for the PPC Optimizer service, for which there is no Set-up Fee or management fee, Howard Consultants will charge Customer a non-refundable setup fee which may vary according to the Advertising Services purchased (“Set-up Fee”) as well as a monthly management fee and a monthly budget. Such budget shall be determined by the Customer. Howard Consultants reserves the right to waive or discount the Set-up Fee in certain limited instances at the Company’s sole discretion. Any one-time service fees charged to your account and any initial deposit, the value of which will be credited to your account, are non-refundable. We will automatically bill your credit card, charge card, or debit card on file for each month of service in advance. All monthly accounts require a minimum of a three month commitment at sign-up.
For Customers, that receive the PPC Optimizer services, the monthly subscription fee is non-refundable. Additionaly, for Customers that receive PPC Optimizer services, any “monthly budget” already deposited with Howard Consultants is non-refundable.
5. Cancellation; Termination. Howard Consultants may at any time terminate the Advertising Services, terminate this Agreement or cancel any Advertisement and/or landing page. Howard Consultants will notify Customer by email of any such termination or cancellation which shall be effective immediately. Upon cancellation or termination Customer shall remain liable for any amounts due for as impressions, clicks, plays, and/or phone calls already delivered and for clicks on any Advertisements through the date of such cancellation or termination.
Should you desire to cancel Advertising Services, you must email Howard Consultants at firstname.lastname@example.org at least seven (7) business days prior to the renewal of your existing service. Cancellation of Advertising Services will occur within 48 hours of receipt of request. Cancellations may be subject to a cancellation fee. Cancellation requests made after renewal of the specific Advertising Service(s) will be valid only at the end of the then current 30-day billing cycle, at which time such Advertising Service(s) will be canceled. Upon cancellation of your Advertising Service(s), Howard Consultants will not provide any refunds to you.
Notwithstanding the foregoing, Customer may terminate its PPC Optimizer services at any time. Customer must email Howard Consultants at email@example.com in order to terminate PPC Optimizer services.
6. Prohibited Uses. Customer agrees not to: (i) generate fraudulent impressions of or fraudulent clicks on any advertisements on the Service, including but not limited to using robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of other search optimization services and/or software; (ii) advertise substances, services, products or materials that are illegal; (iii) violate any policy posted in the Acceptable Use Policy; (iv) fraudulently redirect end user including but not limited to unauthorized use of proprietary rights, copyrights, trademarks, or service marks in URLs, use of false or misleading URLs, use of “ghosting”, “cloaking”, and/or “doorway pages” methods; or (v) engage in any other illegal or fraudulent business practices. Howard Consultants reserves the right to manually review all creative for quality and relevancy and reserves the right to refuse any Advertisement or landing page should Howard Consultants or a Howard Consultants affiliate determine it to be inappropriate or irrelevant for any reason whatsoever.
Advertising Services is not intended to assist You in engaging in unlawful or morally objectionable activities. Howard Consultants’ search engine partners reserve the right to refuse or remove any URL or web page from a search engine’s index for any reason. Furthermore, Howard Consultants explicitly reserves the right to refuse to sell to anybody and the right to terminate Your license or Your service if it comes to Howard Consultants’ attention that You are using the PPC Services to enable or otherwise enhance Your participation in objectionable activities, which include, but are not limited to, the following: spamming or churning; activities designed to undermine the validity and/or credibility of search engine results; activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of the United states and/or foreign territories in which You live or access the Internet; activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism, inappropriate behavior and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; or activities designed to harm minors in any way.
Howard Consultants reserves the right at its sole discretion to refuse to sell the Advertising Services for the following category of sites: gambling and adult sites as well as any other site that may be in violation of the law. Howard Consultants Advertising Services only apply to English language Websites advertising on US based search engines.
You must have an active, operational and working Website for the Advertising Services. You agree that any URL or web page you submit using the Advertising Services must resolve to an operational web page and may not resolve to a DNS error, a 404 error or other error message. Your web page must be publicly accessible without the use of passwords or other access codes. Because of the spidering technology used in many search engines, your web pages must not reside on a secure server or use any spider blocking technology. The description of your web page must be relevant to the page content.
You represent and warrant that Your URL and/or web page(s) do not infringe the intellectual property rights of any third party. You further represent and warrant that Howard Consultants, its search engine and directory partners, and each of them, have the right and license under any rights or interests You may have in Your URL and/or web page(s) to publicly perform, publicly display, and distribute any search listings generated by the PPC Services, and to copy, modify or manipulate the search listings as necessary to conform to search engine or local listing standards.
7. Use of Service. Customer agrees to pay all applicable charges under this Agreement, including any applicable taxes or charges imposed by any governmental entity. Where applicable for PPC Services or PPM Services or PPA Services, Customer acknowledges that Howard Consultants may change the minimum pricing for bids on keywords or advertising inventory at any time. If Howard Consultants, in its sole discretion, believes that Customer’s ability to pay timely is or becomes questionable, Howard Consultants may require additional payment in advance, or may immediately stop serving and displaying Customer’s Advertisements and/or landing pages.
All requested URL links, search terms and descriptions are subject to Howard Consultants’ approval. Howard Consultants reserves the right to reject, cancel or remove any URL link, search terms and descriptions at any time for any reason whatsoever.
You agree and understand that your use of the Advertising Services and related functionality, tools, platform and technology may be subject to latency, errors, technical issues, unavailability and incorrect data and information. Also the very nature of the Advertising Services are dependent on third party services, including, but not limited to Google® and Bing™ | Yahoo!® Search, for data and information and therefore some technical issues and data errors may be outside the control of Howard Consultants. Therefore, You must agree to the terms and conditions applicable to You for Google® and Bing™ | Yahoo!®. You also understand and accept that your use of the Advertising Services may not result in greater sales, leads and/or website traffic.
8. Relevancy. You may only submit search terms and descriptions to Howard Consultants and the Advertising Services that are relevant to your Website(s) or to those web page(s) contained in your website(s). All search terms and descriptions submitted are subject to relevancy review by Howard Consultants, and are subject to removal or rejection.
9. Trademark Searches. Due to the volume of search terms/keywords generated through the Advertising Services such as PPC Services, Howard Consultants will not perform trademark searches on search terms/keywords that it recommends. Howard Consultants reserves the right to remove or delete search terms/keywords in the event that a third party demonstrates to Howard Consultants that a customer’s use of a search term/keyword may infringe such third party’s intellectual property rights. Howard Consultants will also not perform trademark searches on Advertisements and on any landing pages that are created.
10. Billing. If your budget is used up on any given day, your campaign will be switched off until sufficient funds are provided for continued advertising. Because your PPC Services are managed and allocated at Howard Consultants’ discretion based upon an optimization strategy matching your business, you may not see your Advertisement appear on certain advertising networks or search engines at all times and your results may vary. Howard Consultants activates billing for the PPC Services upon purchase. To receive ad clicks, you must have a live Website. Lack of a Website will not defer charges or fees for the PPC services.
For customers that receive PPC Optimizer services, it may take up to two (2) billing cycles to reconcile Your outstanding balance to Howard Consultants. You explicitly agree that, even after termination of the PPC Optimizer services, Howard Consultants shall have the right to bill You and You shall be obligated to pay any outstanding balance owed to Howard Consultants for such services until such outstanding balance is fully satisfied.
11. Temporarily Pausing Your PPC Ad Campaign: PPC Services include an ongoing PPC advertising campaign that you and your Howard Consultants account manager will work together to launch based on your business needs and available budget. During the course of your PPC advertising campaign, you may temporarily pause your campaign during which you will not be charged (1) a monthly management fee, or (2) your monthly budget amount. You must contact your Howard Consultants PPC account manager to request to pause your PPC advertising campaign and confirm your request via email. If your campaign remains paused for more than thirty (30) days, Howard Consultants reserves the right to terminate your PPC advertising campaign and account. At Howard Consultants’ sole discretion, Howard Consultants may grant customer requests to pause a PPC advertising campaign for a period longer than thirty (30) days. You must reactivate your paused campaign by contacting your Howard Consultants account manager. This section is not applicable to PPC Optimizer Services.
12. Reporting. From time to time, Howard Consultants may make available for Customers who have purchased the Advertising Services certain reports regarding a number of items, including, but not limited to, Customer’s advertising campaigns, keywords, bids, clicks, conversions, advertisements, calls, budget allocations, return on investment for advertising campaigns, click thru rates, location of leads, etc. These reports may contain errors, omissions, inaccuracies and incomplete data and information. You agree that Howard Consultants will use, when applicable, the Company’s own metrics and analysis for tracking and calculating click prices delivered, applicable unit prices and all other traffic measurements and data for the Advertising Services. You understand and accept that any information and/or data provided by Howard Consultants to you for your Advertising Services may be unavailable from time to time, may not be processed on a real-time basis and may be subject to the errors or latency of the internet, Howard Consultants’ and its third party partners’ systems and search engines.
13. Feedback. Customer agrees to provide via email to Howard Consultants approval of the keyword phrases list for the PPC Services. If feedback is not received by Howard Consultants within a reasonable period of time (as determined by Howard Consultants and indicated to you in the email), you agree that Howard Consultants reserves the right to finalize recommended keywords and Howard Consultants will not be held liable for any claims that may arise from the finalization of the keyword phrases or any additional costs required to extend the project timeline. You understand and agree that your failure to respond to the email that contains the recommended keyword phrase list is considered an approval of the recommended keyword phrase list thereby giving Howard Consultants the authority to commence your advertising campaign(s) and all associated billing for the PPC Services. You agree that after the approval of the keyword phrases, Howard Consultants reserves the right to restrict and/or reject subsequent changes to the keyword phrases by the Customer during the term of the PPC Services. This section is not applicable to PPC Optimizer services.
14. Calls. You give Howard Consultants and its partners the express authorization to track and record certain sales calls (the “Sales Call Recording Feature”) that relate to your advertising campaign as a part of the Advertising Services. You expressly understand that since these sales calls may be recorded you will seek out and receive express written authorization to record these calls from your employees prior to enabling the Sales Call Recording Feature of the PPC Services. You further agree that you will maintain records of such express written authorization and keep those records for at least one year after the authorization is provided by your employees. You further agree to provide Howard Consultants a copy of the signed authorization forms, if Howard Consultants requests it from you. You agree to indemnify and hold Howard Consultants, Howard Consultants’ employees and agents harmless from any and all claims with respect to the Sales Call Recording Feature. This section is not applicable to PPC Optimizer services.
15. Landing Pages. Upon purchase of a Landing Page package, You give Howard Consultants express permission to create custom landing pages for your Website as a part of the Advertising Services and such landing pages may include some or all of the content on your existing Website along with links that relate to or are part of Advertisements. You further agree that Howard Consultants may revise, edit or delete certain content in order to create a custom landing page as a part of the Advertising Services. In the creation of the custom landing pages, you understand that such custom landing pages may interact in different ways with third party functionality that relates to or resides on your Website including, but not limited to, SSL certificates and third party seals. In some instances the SSL certificate and/or third party seal(s) for a custom landing page may be suppressed and not shown in order for the custom landing page to resolve.
SCHEDULE D TO HOWARD CONSULTANTS SERVICE AGREEMENT
WEBSITE, ECOMMERCE & LOGO DESIGN SERVICES
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 customer purchases of Website Design Services, Ecommerce Design Services, Custom Design Services, Logo Design Services (as further defined below).
1. Description of Website Design Services, Ecommerce Design Services, Custom Design Services and Logo Design Services
1.1 Howard Consultants will build a Website and/or Ecommerce site (hereinafter referred to as the “Website”) for the Customer (“you” and/or the “Customer”) based upon direction and input provided to us by you. The services referenced in this Schedule may be collectively referred to as the “Design Services.” Subject to the terms and conditions of this Agreement (which includes this and all other applicable Schedules) and during the term of this Agreement, Howard Consultants agrees to provide to you the Design Services described on the Howard Consultants Website and purchased by you during the sign-up process. Howard Consultants reserves the right to amend its Design Services offerings and to add, delete, suspend or modify the terms and conditions of such Design Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers. In the event Howard Consultants refers you to a partner or affiliate and you engage such partner or affiliate to directly provide website design or logo design services to you, you understand and agree that Howard Consultants is in no manner responsible for the services provided by that partner or affiliate and that the terms and conditions of that partner or affiliate will apply to the provision of those services provided by the partner or affiliate.
1.2 Customer hereby grants to Howard Consultants and its vendors and subcontractors all necessary rights and licenses with respect to the Customer’s Website or logo created by Howard Consultants in order to carry out its obligations under this Agreement and to make a reasonable number of archival or back-up copies as deemed necessary by Howard Consultants. Howard Consultants is not responsible for archiving documents, graphic work, physical goods or web pages created for client or documents, graphic work, physical goods or files which are mailed, email or faxed to Howard Consultants. Howard Consultants is not responsible for returning any files, documents or physical goods emailed, faxed or mailed to us.
1.3 The Logo Design Service is an offering whereby Howard Consultants will refer you to a third party for creation and design of your logo. In the event that you engage such third party to create and design your logo, you understand and agree that Howard Consultants is in no manner responsible for the services provided by that third party and that the terms and conditions of that third pary will apply to the provision of those services provided by the same third party.
1.4 The Website Design Service, are offerings whereby a Customer can request that Howard Consultants assist them with the design of a website using Howard Consultants Website building tools as selected by Howard Consultants at Howard Consultants’ discretion. Such tools may also include or utilize third party applications. Certain Website building tools we use for the Website Design Service utilize the Joomla® software application and default templates which are subject to terms and conditions of the GNU General Public License which can be found at http://www.gnu.org/licenses/old-licenses/gpl-2.0.html. Additionally, we use open source plug-ins to accomplish functionality requests with Joomla! We cannot guarantee these plug-ins will be supported in all browsers or that they will continue to function if you update the Joomla version without our assistance. Additionally, some of these services may also include additional internet marketing services as outlined in advance in writing by Howard Consultants and as further governed by this Agreement.
1.5. The Ecommerce Design Service is an offering whereby a Customer can request that Howard Consultants assist them with the design of their ecommerce site. If you purchase Ecommerce Design Services, you agree that you take full responsibility for all content suggested or supplied to Howard Consultants for inclusion on web document(s), advertisement(s) or any form of media. Customer is held legally liable for the supplied content.
1.6. Custom Design Services. As part of the Custom product group, your design may be dictated by a Statement of Work. This level of service is an offering whereby a Customer can request that Howard Consultants design and create a Website for them using sophisticated graphics, advanced layouts and other features. This level of custom design is not based from a preset template. The Customer will receive a custom website designed and developed by Howard Consultants. Although Howard Consultants will custom design your website, your website may contain some features and design elements used in other Websites designed by Howard Consultants. If your design falls into this group, in addition to the terms and conditions set forth in this Services Agreement and this Schedule, the Customer shall be bound by the terms of the Statement of Work which shall be prepared by Howard Consultants and mutually agreed to by Customer and Howard Consultants. The Statement of Work may contain, but may not be limited to, a list or description of the services our Designers will provide you as part of the Custom Design Services, a list of technical, graphic or other special features that will be incorporated into your website, applicable fees and payment schedule, and a description of any applicable cancellation fee or policy. This Statement of Work shall become a part of this Services Agreement and shall be subject to all terms and conditions of the Services Agreement.
2. Your Obligations. In order for Howard Consultants to perform the Design Services in accordance with this Agreement, you shall be responsible for doing the following:
2.1 Providing Howard Consultants with all information requested by Howard Consultants as well as any custom images (including, but not limited to, design, pamphlets, brochures, logos, and other images) that the Customer wishes to use in connection with development of your website or Ecommerce site.
2.2 Contacting Howard Consultants promptly to make changes, modifications, and enhancements to your website or Ecommerce site starting from the date of sale.
2.3 Contacting Howard Consultants promptly with notice of Customer’s decision to cancel or discontinue the Design Services starting from the date of sale.
2.4 Obtaining Internet connectivity to access your website, to send and receive email, and to otherwise access and utilize the Internet.
2.5 To the extent that Customer gathers any personal information about visitors to Customer’s website, Customer will not share that personal information with any third party without first obtaining the visitor’s consent.
2.6 Ensuring that the website content provided by Customer does not infringe or violate the Intellectual Property rights (including, but not limited to, trademarks, trade names, copyrights, patents, domain registration rights, and trade secrets) or any other right of any third party (including, but not limited to, rights of privacy and contractual rights), and acquiring any authorization(s) necessary to use intellectual property or other proprietary information of third parties. By using the Design Services, Customer represents and warrants that any name or word submitted to be used as all or part of the URL associated with your website does not infringe any trademark or domain name rights of any third party.
2.7 Ensuring the accuracy of materials provided to Howard Consultants, including, without limitation, website content, descriptive claims, warranties, guarantees, nature of business, and contact information for the Customer.
2.8. During any stage of the design process, a designer or project manager will be working with you to gather information to start, feedback to revise, or approval to complete your website. Prompt response will be necessary for the project to move forward in a timely manner. If a response is not received from the client for more than 30 days, the design project is considered “abandoned” and payment is surrendered in full. Howard Consultants reserves the right to charge you a fee for repeated missed consultations, repeated rescheduling of consultations related to any website design work, and/or the reinstatement of your website design to an active status if no response has been received from you for 30 days.
2.9. Following the timeline of activities provided to you by Howard Consultants, if any.
3. Information and Content You Provide. 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, Howard Consultants has the right to suspend or terminate your account and refuse any and all current or future use of the Design Services (or any portion thereof). You acknowledge that Howard Consultants does not pre-screen Content, images and inventory. However, Howard Consultants and its designees shall have the right to remove any Content that violates the Acceptable Use Policy (“AUP”). You agree that you must evaluate, and bear all risks associated with the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Howard Consultants or submitted to Howard Consultants.
4. Non-Interference By You. Customer will use the Design Services in a manner which does not interfere with or disrupt other network users, services, or equipment, and Howard Consultants reserves the right to terminate or suspend the Design Services without notice if such interference is determined by Howard Consultants to exist. Such interference or disruption includes, but is not limited to:
4.1 wide-scale distribution of messages, including bulk email or unsolicited spam email, or wide-scale distribution of messages to inappropriate mailing lists, newsgroups, or other public or private forums,
4.2 propagation of computer worms or viruses, and
4.3 use of the network to make unauthorized entry to other computational, information, or communications devices or resources. This includes unauthorized security probing activities or other attempts to evaluate the security integrity of a network or host system without permission.
5. Unauthorized or Inappropriate Use.
5.1 Howard Consultants reserves the right to deny, terminate, or suspend Design Services without notice if, in Howard Consultants’ sole discretion, the Design Services are used by Customer in a manner that violates or may violate the following standards or the AUP, and Howard Consultants reserves the right to reject, alter, modify, or remove Customer’s website, website domain name, URL address, or any website content (including, but not limited to, any language, words, text, photographs, designs, drawings, graphics, images, symbols, or logos) which Howard Consultants in its sole discretion deems to be in violation of the AUP or (i) an infringement on or a mechanism designed to facilitate the infringement of a propriety interest of any third party, including without limitation, any copyright, trademark, domain registration right, trade secret, or patent right, or (ii) stating or implying that the Website is placed by Howard Consultants or any party with a contractual relationship with Howard Consultants, or that such parties endorse the Customer’s products or services, or (iii) pornographic or obscene.
5.2 Howard Consultants neither sanctions nor permits hosted site content or the transmission of data that contains illegal or obscene material or fosters or promotes illegal activity. Howard Consultants reserves the right to immediately suspend or terminate any site or transmission that violates this policy, without prior notice. In the event of such termination, Customer agrees that the unused portion of any fees Customer may have paid for any services rendered to Customer by Howard Consultants are an appropriate recompense to Howard Consultants for the time required to respond to and address issues created by Customer’s illegal or obscene site/content, and Customer agrees not to seek recovery of those fees. Further, should Customer violate this Agreement or the AUP, Howard Consultants will actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about Customer, Customer’s website, the illegal or obscene content, and those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content.
6. Additional Indemnification Obligations. In addition to your indemnification obligations set forth elsewhere in this Agreement, you agree to defend, indemnify, and hold harmless Howard Consultants and each of its officers, directors, employees, agents, affiliates, co-branders or other partners, and employees of any of the foregoing, from, against, and in respect of: (i) any and all losses, damages or deficiencies resulting from any third party claim in connection with your website (including, but not limited to, website content) or the URL and (ii) all costs and expenses incident to any and all actions, suits, proceedings, claims, demands, assessments, or judgments in respect thereof regardless of the merit thereof, including reasonable legal fees and expenses (whether incident to the foregoing or to Howard Consultants’ enforcement of said rights or defense and indemnity).
7. Ownership of Your Content. With the exception of your ownership interest in the information, materials, images, photos and other content that you provide to us for inclusion in your website, ownership interest to your website, including, but not limited to, the HTML coding, scripting, copyrights, visual layout, appearance and design and all other intellectual property rights, shall be with Howard Consultants and Howard Consultants grants you a non-exclusive, revocable license to use these design elements and related applications. Howard Consultants shall also have the right to display your Website on its online properties as an example of the design work Howard Consultants is able to provide for its customers. For the web design services it is expressly understood that in addition to the ownership interest of Howard Consultants as referenced above in this Section, Howard Consultants shall also own the rights to the domain name utilized in conjunction with the Website.
8. Fees and Payment Terms. Fees for the Design Services selected by you will be on a pre-paid basis, due and payable at point of sale (meaning at the beginning of the project), unless another fee or payment structure is mutually agreed to by you and Howard Consultants in writing, namely, the Statement of Work or via other method such as an order confirmation or welcome email. For the web site design services, you will pay a recurring fee (via a monthly or other similar billing cycle) to Howard Consultants, in advance, for those related services. You agree to follow the timeline set forth by Howard Consultants in the Statement of Work. You agree that in the event you terminate your subscription to the Design Services prior to the completion of your Design Services you will be subject to a cancellation fee. If your Design Services have been completed and been delivered to you, you will not receive a refund of any fees paid and, in the event we have permitted you to pay on a monthly (or other payment-over-time) basis, you will be obligated to pay us for the balance of your total. The purchase and completion of any Design Services requires receipt of written content and images by you (“Content”). If insufficient Content is received we will complete your Design Services with placeholder content and deliver the Design Services to you within the guidelines of our timeline. At this time you will no longer be eligible for a refund. Content submitted after timeline can be added at an hourly rate determined by Howard Consultants. If you purchase any Design Services and Howard Consultants has waived your initial design or set up fee or offered you a discounted set up or design fee, Howard Consultants shall have the right to charge you, and you agree to permit Howard Consultants to charge your credit card, up to Two Hundred and Fifty Dollars ($250.00), should you choose to cancel the Design Services within sixty (60) days from the date of purchase and after work on your Design Services has started. Should you need to pause progress of your Design Services with Howard Consultants for any reason, you may do so for sixty (60) days. After sixty (60) days you will be charged a restart fee for completing the work on such Design Services. If within sixty (60) days of purchase you choose to cancel your Design Services you will be subject to a cancelation fee. Responses from you will be necessary for the project to move forward in a timely manner. In these situations, if a response is not received for more than sixty (30) days, the project is considered “abandoned” and payment is surrendered in full. In addition, if you request to remove your designed Content from our website builder platform, you agree to pay Twenty-Five Dollars ($25.00) per page. Finally, Howard Consultants reserves the right to charge you a fee for repeated missed consultations related to any Design Services work.
Notwithstanding the foregoing, for the Website design services, upon termination of those services, should Customer desire to obtain ownership rights to the Website, Customer must obtain express written permission from Howard Consultants and Customer shall further remit a fee to Howard Consultants for the assignment of these rights to the Website. Provided Customer is not in default of the Agreement and Customer is also current with respect to payments owed to Howard Consultants, the fee to be remitted for this assignment will be equal to twelve (12) times the then-current recurring fee (monthly or otherwise) received by Howard Consultants for the Services, unless Customer has already paid Howard Consultants for the Services for a continuous twelve (12) billing cycles prior to the above referenced termination, whereby the fee shall then be equal to Ninety-Nine Dollars ($99.00). This assignment to Customer of ownership rights to the Website shall be limited to the actual portions of the Website visible on the Internet and its underlying HTML coding as developed specifically for Customer by Howard Consultants, and shall be sent to Customer via compact disc, but this assignment shall not include any rights to Howard Consultants’ software, trade secrets, methodologies, processes, proprietary functions, know-how, and all intellectual property including, but not limited to, all copyrights, trademarks, patents, and trade secrets related to Howard Consultants’ products or services, which shall remain the sole and exclusive property of Howard Consultants and its respective suppliers, affiliates, partners, and/or licensors. For all images that are part of the Website and assigned to Customer hereunder, Customer is granted permission to only use those images in the manner in which it is provided to Customer by Howard Consultants (i.e. embedded in the Website) and no other use of the images is permitted whatsoever. Moreover, upon assignment Howard Consultants does not warrant the portability or functionality of the Website in any way to or on any platform, hosting or otherwise, that is not provided by Howard Consultants. Additionally, if Customer desires to purchase the domain name associated with the Website, Customer agrees to pay Howard Consultants an additional fee of Ninety Dollars ($90.00).
Payment for the purchase of additional design time after the Design Services have been completed (“Modification Time”) will be on a pre-paid, hourly basis, due and payable at the beginning of each modification (and each month thereafter if purchasing additional Modification Time). Any unused Modification Time shall not “roll-over” and be used in a subsequent month.
9. Suspension and/or Termination. If you breach any term of this Agreement including, but not limited to, the terms of this Schedule or the AUP, Howard Consultants may, in its sole and exclusive discretion, suspend or terminate your Design Services immediately and without notice to you. In addition to your obligation to pay any set up and applicable fees for the Design Services, fees for the Design Services may continue to accrue on suspended accounts and you will continue to remain responsible for the payment of any fees for Design Services that accrue during the period of suspension.
10. Refunds. Refunds are not available for Design Services once you have approved your design composition and/or selected your design template. In any event, after one (1) year from the date of purchase, no refunds will be provided.
11. Modifications and Quotes. Quotes for modifications to an existing website are prepared in a statement of work by us exclusively for you. The prices and modifications agreed to in statements of work are unique to you. Any statement of work prepared for you is valid for thirty (30) days from the date it is provided to you and will become void thereafter. If any change or alteration is made to the statement of work, Howard Consultants may issue to you a revised statement of work and may require you to purchase additional Design Services, which may be billed to you at an hourly rate.
SCHEDULE E TO HOWARD CONSULTANTS SERVICE AGREEMENT
ADDITIONAL TERMS APPLICABLE TO ECOMMERCE SERVICES
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 other Ecommerce Services (as defined below).
1. Description of Service. Howard Consultants may make available for purchase, from time to time, a variety of ecommerce packages or solutions, stand-alone Ecommerce services, optional add-on ecommerce services and ecommerce software, as published on the Howard Consultants website (collectively, “Ecommerce Services”). The Ecommerce Services include, but are not limited to, shopping cart functionality, ecommerce templates, storefront design, support and hosting, order and payment processing, inventory and product tracking and management, and Website analytical tools. Howard Consultants reserves the right to amend its Ecommerce Services offerings and to add, delete, suspend or modify the terms and conditions of the Ecommerce Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
2. Software License and Proprietary Rights. During the term of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive license for Customer to use the Ecommerce Services, including but not limited to any software, and related documentation solely for Customer to provide business related services over the internet that are consistent with the terms and conditions of this Agreement as well as any applicable state, federal, or international law. Customer agrees that Customer and its agents will not: (a) sell, lease, transfer, license or sublicense the Ecommerce Services; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the Ecommerce Services in any way for any reason; (c) provide, disclose, divulge or make available to, or permit use of the Ecommerce Services by any third party; (d) copy or reproduce all or any part of the Ecommerce Services (except as expressly provided for herein); (e) interfere, or attempt to interfere, with the Ecommerce Services in any way; (f) engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the Ecommerce Services; (g) knowingly introduce into or transmit through the Ecommerce Services or any other services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Ecommerce Services; (i) engage in or allow any action involving the Ecommerce Services that is inconsistent with the terms and conditions of this Agreement; or (j) cause, assist or permit any third party to do any of the foregoing. No right, title or interest of intellectual property or other proprietary rights in and to the Ecommerce Services and/or other products, services or software made available under this Agreement is transferred to Customer hereunder. Howard Consultants, its wholly-owned subsidiaries and affiliates and its Third Party Licensors (as defined below) retain all right, title and interests, including, without limitation, all copyright, trade secret, intellectual property and other proprietary rights in and to the Ecommerce Services and/or other products, services or software provided under this Agreement.
3. Audit Rights. If a customer has purchased any Howard Consultants software or has obtained FTP access to the Howard Consultants software or other Ecommerce Services, Howard Consultants shall have the right, during the term of this Agreement and for a period of six (6) months thereafter to access Customer’s location and files to inspect Customer’s or your agent’s use of the Ecommerce Services, as well as computers and equipment used in connection therewith. Customer shall cooperate fully with any such audit or inspection. In the event that any audit shows any misuse, violation or breach of the Ecommerce Services or this Agreement, Howard Consultants shall be entitled to pursue any remedies available to it under this Agreement or otherwise at law or in equity, and to or suspend, revoke, or terminate Ecommerce Services if you are still a Howard Consultants customer.
4. Availability, Downtime and General Services. In addition to the provisions in Sections 7 and 8 of this Agreement, the parties acknowledge that since the Internet is neither owned nor controlled by any one entity, Howard Consultants makes no guarantees that any given user will be able to access the Ecommerce Services at any given time. Howard Consultants shall not be liable to Customer for failure of accessibility to the Ecommerce Services or any potential or actual losses that Customer may suffer from Customer’s inability to access or use the Ecommerce Services or your customer’s inability to access any websites that may be supported or hosted by Ecommerce Services. Howard Consultants provides all Ecommerce Services and any software related to those services to the Customer on an “as is” basis and does not guarantee that the Ecommerce Services or any related software has no errors, defects or bugs or will function properly. Customer agrees that Howard Consultants is not responsible in any way for any malfunction or downtime in the Ecommerce Services or related software and any damage, injury or lost profits that may arise from such malfunction or downtime. Howard Consultants makes no guarantee that the Ecommerce Services that the Customer purchases will operate seamlessly and without error with Customer’s own hardware, software or other services (including third party products) that Customer currently uses. Howard Consultants makes no guarantees regarding system uptime, including but not limited to, the uptime for hosting a Customer’s store(s) on Howard Consultants or third party systems. From time to time, and as may be necessary to maintain such systems and Howard Consultants hardware, Howard Consultants reserves the right to take its servers and other hardware offline for repairs, upgrades or routine maintenance. Customer agrees and understands that Howard Consultants Ecommerce Services, including the hosting of a Customer’s store, may be dependent on third party services that Howard Consultants cannot control. Customer expressly agrees that the availability of those third party services may impact Customer’s Ecommerce Services and therefore does not hold Howard Consultants liable for any actions of a third party that may adversely impact Customer’s Ecommerce Services. Any uptime calculation or percentage that is provided as a part of the Ecommerce Services does not include routine maintenance, unexpected downtime caused by network issues or third party vendors, and occurrences that are outside the control of Howard Consultants, including but not limited to the Force Majeure occurrences that are outlined in Section 27 of General Provisions of this Agreement.
5. Restrictions on Use. You agree that you will not exceed the bandwidth or storage space limits applicable to the Ecommerce Services purchased, as set forth on our Website. You agree that if you do exceed any such limits or otherwise engage in any such activity, Howard Consultants, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, billing plan adjustment and/or upgrade, assessment of additional fees and/or suspension, and/or termination of your eCommerce Services. You agree that if your bandwidth and storage space usage adversely affects other customers on our shared Ecommerce Services platform, Howard Consultants may adjust your billing plan and/or suspend or terminate your Ecommerce Services without liability. You agree that Howard Consultants will have no liability to you or any of your end users due to any corrective action that Register.com may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
6. Bandwidth Fees. If you purchased your Ecommerce package prior to May 30, 2013 you are still subject to any bandwidth overage fees. Bandwidth overages will be incurred for each Gigabyte (GB) of usage over your allotted plan amount. The fees are applied by the following scale:
Bandwidth Overage (GB) Per GB
6 – 10 $ 1.50
11 – 24 $ 3.50
25 – 60 $ 5.00
61 – 100 $ 7.50
Excess bandwidth usage cannot be purchased by you in advance. If you exceed your data transfer limit in the last 24 hours of any given month, Howard Consultants will not charge you additional fees so long as the data transfer overage does not exceed 25GB. For Ecommerce Services, you agree that Howard Consultants may automatically charge your credit card for the bandwidth overage fees. You may opt-out of automatic charges to your credit card by contacting Customer Service. If you opt out of the automatic overage charges, you risk account suspension if you exceed your allotted amount.
7. Terms and Conditions of Howard Consultants’ Licensors. Customer acknowledges and agrees that the Ecommerce Services are provided, in some cases, by third party Licensors to Howard Consultants (hereinafter “Third Party Licensors”). For all Ecommerce Services that are provided by Third Party Licensors to Howard Consultants, Customer agrees with and shall abide by all Third Party Licensor terms and conditions, if any. Such Third Party Licensor terms and conditions are available upon request (the “Additional Terms and Conditions”). Any Additional Terms and Conditions are in addition to and supplement the terms and conditions provided in this Agreement. Customer acknowledges and agrees that it will be subject to all Additional Terms and Conditions and that all such Additional Terms and Conditions shall be incorporated into this Agreement, to the extent those Additional Terms and Conditions do not conflict with the terms and conditions of this Agreement, as if set forth fully herein. Customer further agrees that it will be subject to all Additional Terms and Conditions where Customer elects to add services to its Ecommerce Services package.
8. Changes to Howard Consultants Licensors. Customer acknowledges that Howard Consultants may, at its sole discretion, change any Third Party Licensors that provide services under this Agreement, or add or delete discrete services from the Ecommerce Services. In the event that Howard Consultants changes Third Party Licensors, Howard Consultants may provide Customer with notification of changes in Third Party Licensors and refer Customer to information posted on Howard Consultants’ website relative to that change which shall become Additional Terms and Conditions for the purposes of this Agreement.
9. MasterPass Online Services. Customer further expressly agrees that in conjunction with any use of any MasterPass Online services on Customer’s website and/or otherwise in connection with the Ecommerce Services, Customer agrees to the Additional Terms and Conditions related thereto and located online here, and further authorizes Howard Consultants to accept such Additional Terms and Conditions on Customer’s behalf. Customer expressly authorizes Howard Consultants to opt Customer in to the MasterPass Online services, and should Customer be opted-in to any such services by Howard Consultants, Customer shall have the right to opt-out of such services by contacting Howard Consultants via email at firstname.lastname@example.org
10. Refund. Refunds for certain Ecommerce Services are only provided in limited instances and only within the first 30 days from Customer’s purchase of the services. Such refunds are only permitted where the Customer has taken all actions consistent with this Agreement and has not taken any action that would void the 30-day trial offer. Refunds will not include a processing fee that all Customers must pay.
SCHEDULE F TO HOWARD CONSULTANTS SERVICE AGREEMENT
ADDITIONAL TERMS APPLICABLE TO WEBSITE MIGRATION SERVICE
1. Application of Terms. In addition to the terms and conditions set forth in this Service Agreement, the following additional terms shall apply to Service(s) (as defined herein) for the Website migration service you use, access or purchase (collectively “use”) from Howard Consultants. You agree that each person listed in your account information as being associated with your account for any services provided to you is your agent with full authority to act on your behalf with respect to such services and is bound by the terms of this Agreement.
2. Accurate Information. The Website migration service service allows you to transfer your Website from your current hosting provider to Howard Consultants which will host your site pursuant to the hosting terms and conditions set forth in Schedule A above. In order to migrate your Website to our hosting platform, you must provide Howard Consultants with certain information necessary for us to access your Website. This information shall include but is not limited to, Internet Protocol (IP) address of your current server, your File Transfer Protocol (FTP) username and password, the domain name authorization code, and your email address and password information. To allow us to move your site to our hosting platform, you agree to allow us to place scripts on your site that will allow us to probe for FTP and other data needed to effectuate the migration of your site.
3. Representations and Warranties. YOU REPRESENT AND WARRANT THAT: 1) YOU ARE THE OWNER OF ALL OF THE CONTENT ON YOUR WEBSITE (INCLUDING BUT NOT LIMITED TO THE PHOTOS, COPY, LOGOS, DESIGN ELEMENTS, DATA FILES AND SITE LAYOUT) (“CONTENT”) AND/OR YOU HAVE THE RIGHTS TO TRANSFER YOUR WEBSITE AND ALL CONTENT FROM YOUR CURRENT HOSTING PROVIDER TO HOWARD CONSULTANTS; 2) THAT TRANSFERRING YOUR WEBSITE TO HOWARD CONSULTANTS SHALL NOT VIOLATE THE TERMS AND CONDITIONS OF ANY AGREEMENT YOU HAVE WITH YOUR CURRENT HOSTING PROVIDER OR THIRD PARTY; 3) YOU HAVE THE RIGHT TO PROVIDE US WITH THE INFORMATION REQUIRED TO MIGRATE YOUR WEBSITE TO OUR HOSTING PLATFORM; AND 4) YOUR WEBSITE AND THE CONTENT THEREON: DOES NOT INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY COPYRIGHT, PATENT, TRADEMARK, SERVICE MARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY; DOES NOT BREACH THE RIGHTS OF ANY PERSON OR ENTITY, INCLUDING RIGHTS OF PUBLICITY OR PRIVACY, AND IS NOT DEFAMATORY; AND DOES NOT RESULT IN CONSUMER FRAUD (INCLUDING BEING FALSE OR MISLEADING). IF YOU ARE NOT ABLE TO MAKE ALL OF THESE REPRESENTATIONS AND WARRANTIES, YOU MUST NOTIFY HOWARD CONSULTANTS IMMEDIATELY.
4. Indemnity. In addition to the indemnity obligations in Section 9 of the General Provision of this Agreement, you agree to indemnify and hold harmless the Company, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with the transfer of your Website and its Content to our hosting platform, any breach of your representations and warranties above, or any violation of this Agreement or of any law or the rights of any third party.
5. Suspension Due to Breach. Howard Consultants, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, removal of all or a portion of the Content on your Website and suspension and/or termination of your Web Hosting Services, in the event of notice of any possible violation of this Agreement or the AUP by you or your end users. You agree that Howard Consultants will have no liability to you due to any corrective action that Howard Consultants may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action. You agree to the additional restrictions of use provided by Howard Consultants in conjunction with the Web Hosting Services that are found in other Schedules to this Agreement.
6. Disclaimer of Warranties. IN ADDITION TO THE DISCLAIMER OF WARRANTIES SET FORTH IN SECTION 8 OF THE GENERAL PROVISIONS OF THIS AGREEMENT, YOU AGREE THAT YOUR USE OF OUR WEBSITE MIGRATION SERVICE IS SOLELY AT YOUR OWN RISK AND THAT SUCH SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY. WE MAKE NO WARRANTY THAT THE MIGRATION OF YOUR WEBSITE TO OUR HOSTING PLATFORM WILL BE TIMELY, SECURE, OR ERROR FREE. YOU UNDERSTAND AND AGREE THAT ANY FILES, DATA, OR CONTENT TRANSFERRED USING OUR SERVICE IS DONE AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OF DATA THAT MAY RESULT FROM THE TRANSFER. IN NO EVENT SHALL HOWARD CONSULTANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER WITH RESPECT TO THE WEBSITE MIGRATION SERVICE.
SCHEDULE G TO HOWARD CONSULTANTS SERVICE AGREEMENT
TERMS APPLICABLE TO EMAIL MARKETING SERVICE
Email Marketing Service The “Email Marketing Service” is a service that allows you to directly market to customers, potential customers or leads by sending an email communication to such customers, potential customer or leads. As a part of the Email Marketing Service, there will be “add-ons” and other features and offerings, that are related to the core service of sending email communications including, but not limited to, Event Marketing, Online Surveys, MyLibrary Plus and Email Archive. In addition to the terms of this Agreement, you agree to be bound by and comply with the following Constant Contact terms of service, including amendments and modifications thereto, and agree that Howard Consultants is an intended third party beneficiary of the Constant Contact terms of service with rights to enforce the Constant Contact terms of service located at: http://www.constantcontact.com/uidocs/CCSiteOwnerAgreement.jsp. The Constant Contact terms of service will apply to your use of the Email Marketing Service and any related features, services, offerings or add-ons. You agree to the extent that any provisions in the Constant Contact terms of service conflict with this Agreement, the terms of this Agreement shall control.
SCHEDULE H TO HOWARD CONSULTANTS SERVICE AGREEMENT
TERMS APPLICABLE TO FAN PAGE MARKETING SERVICE
Fan Page Marketing Service The Fan Page Marketing Service is a service that allows you to build a custom Facebook Fan Page and integrate various related applications to that Fan Page. The Fan Page Marketing Service is offered by North Social through Howard Consultants. As a part of the Fan Page Marketing Service, there will be “add-ons” and other features and offerings that are related to the core service of creating, building and maintaining a Facebook Fan Page. In addition to the terms of this Agreement, You agree to be bound by and comply with the following North Social terms of service, including amendments and modifications thereto, and agree that Howard Consultants is an intended third party beneficiary of the North Social terms of service with rights to enforce the North Social terms of service located at http://northsocial.com/terms/#. The North Social terms of service will apply to your use of the Fan Page Marketing Service and any related features, services, offering or add-ons. You agree to the extent that any provisions in the North Social terms of service conflict with this Agreement, the terms of this Agreement shall control.
SCHEDULE I TO HOWARD CONSULTANTS SERVICE AGREEMENT
TERMS APPLICABLE TO THE DOMAIN EXPIRATION PROTECTION SERVICE
Domain Expiration Protection (“DEP”) is a service that prevents a domain name registered to you from becoming available to other parties for purchase if it is not successfully renewed prior to the expiration of its then-current term. In accordance with the DEP service, the domain name shall not expire and instead you will have one (1) year from the aforementioned then-current date of expiration of the domain name to renew the domain name (the “Expiration Period”).
During the Expiration Period, the domain name will remain registered to you, but Howard Consultants may (i) lock the domain name and/or (ii) direct the domain name to an IP address designated by Howard Consultants, including, without limitation, to an IP address which hosts a parking, under construction or other page that may include promotions and advertisements for, and links to, Howard Consultants’ Website and Howard Consultants’ products and service offerings, third-party websites, third-party product and service offerings, and/or Internet search engines, unless and until it is renewed by you along with the proper payment. Renewals of domain names during the Expiration Period will be subject to our then-current standard renewal fees. Only the registrant of the domain name will be permitted to renew the domain name during the Expiration Period and must do so over the phone by calling the Howard Consultants Customer Service team. In the event you do not renew the domain name during the Expiration Period, the domain name will automatically be made available to other parties for purchase at the end of the Expiration Period.