THIS AGREEMENT (THE “AGREEMENT”) DEFINES THE RELATIONSHIP BETWEEN OMG NATIONAL MKTG. (“OMGNATIONAL.COM”, THE “COMPANY”, “WE”, OR “OUR”) AND YOU (“YOU”, “YOUR”, THE “CLIENT”). BY SUBSCRIBING TO OUR SERVICES, YOU CONFIRM THAT YOU HAVE READ AND ACCEPTED THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”, “YOUR” OR “CLIENT” SHALL REFER TO THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE OMG NATIONAL SERVICES. WE MAY AMEND OR TERMINATE ANY TERMS OF THIS AGREEMENT AT ANY TIME AND SUCH AMENDMENT OR TERMINATION WILL BE EFFECTIVE AT THE TIME WE POST THE REVISED TERMS ON THE SITE.
OMG National Corporation
1801 N Pine Island Road, Suite 200
Plantation, FL 33322 USA
Toll-free: 800.789.4619 (U.S. Only)
1:1 Description. We provide online directory, reputation management and social media services (“Services”) for you or someone that you have designated to be the subject of the Services and for whom you will be held strictly responsible (the “Named Party”).
1:2 Orders. The signed agreement (the “Order”) will specify the Services that you are licensing. By submitting an Order, you are submitting an offer to obtain the right to use the Services pursuant to the terms of this Agreement.
1:3 Content Publishing. If content publishing is included in the Services we provide to you, you authorize us to use the content, trademarks, logos, photos, videos, advertisements, information, and other materials provided or identified by you (the “Client Materials”) to create and publish Web content, including content that represents you or the Named Party on any websites we deem fit for the purposes of providing the Services. In addition, you hereby grant to us and our authorized personnel a worldwide, royalty-free, fully-paid, non-exclusive, transferable (in connection with an assignment of the Agreement), sublicensable (as necessary to perform the Services) license to use, reproduce, publicly perform, publicly display, publish, distribute, create derivative works of, and otherwise exploit any Client Materials as we deem appropriate to perform the Services. You agree to respond in a timely manner to our requests to review and approve information generated for you and acknowledge that we may make unilateral content publishing decisions on your behalf should you fail to meet the applicable response deadlines. You acknowledge and agree that we will own, subject to any Client Materials therein, all right, title, and interest in and to any materials, content, or other works of authorship created by us or on our behalf and used in connection with the Services. We acknowledge and agree that you will own all right, title, and interest in and to any Client Materials.
1:5 Online Reviews and Ratings. If monitoring and managing your online reviews or ratings is included in the Services you order, you represent and warrant that (a) you are authorized to provide us with any customer, patient, and user information that you provide to us in connection with such Services (the ”Reviewer Information”); (b) our possession and/or use of the Reviewer Information on your behalf in connection with the Services will not violate any contract, statute, or regulation; and (c) any content that you and/or your authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, are the original work of your authorship and will only concern you and the goods and/or services that you provide.
2:1 Acceptable Use Policy. We do not allow our Services to be used for illegal activities, nor activities that we deem improper for any reason whatsoever in our sole judgment. We reserve the right to take preventative or corrective actions to protect ourselves and our users from unacceptable use by any client. Your use of the Services is conditional in part to your compliance with the rules of conduct set forth in this Section, and any failure to comply may result in termination of your access to and use of the Site and Services. While using the Site and Services, you are not to: (a) impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity, or use or provide any fraudulent, misleading or inaccurate information; (b) defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity; (c) access or use (or attempt to access or use) another user’s account without permission; (d) transmit any software or materials that contain any viruses, worms, trojan horses, defects, or other items or computer code of a destructive nature; (e) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Site or Services; (f) “frame” or “mirror” any portion of the Site or Services; (g) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Site or Services; (h) harvest or collect information about or from other users of the Site or Services; (i) use the Site or Services for any illegal activity; or (j) probe, scan or test the vulnerability of the Site or breach the security or authentication measures on the Site or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site. Subject to the limited rights to use the Site and Services pursuant to this Agreement, we retain all right, title and interest in and to the Site and Services, including all related intellectual property contained therein.
2:3 CLOUD STORAGE. All Directory Content is stored on the OMG DATA CLOUD. During the term of your agreement there will be no extra charges to store content and provide the feed to Search, Directory and Review websites with client supplied graphics, videos, pictures or descriptions.
2:4 REVIEW PLATFORM. OMG will create on clients behalf a Review Website Page for integration into client website or for standalone use. OMG will host this platform and make published reviews visible on-line during the term of the agreement. OMG does not guarantee a certain number of reviews and is acting in a consultative capacity and providing a platform to gather such reviews. OMG will answer negative reviews and repost positive reviews instituting known best practices.
2:5 SOCIAL MEDIA POSTING. OMG will provide Social Media consultation and provide a scheduled POSTING service. The content for the postings will be generated as a result of client filling out our SOCIAL MEDIA SURVEY.
2:6 REPORTING. OMG will make available to client reporting as requested or as a course of normal business practices. This reporting shall provide the OMG POWER NETWORK listings and links as well as analytics relating to those sites.
3:1 Fees and Auto-Renewal. You agree to pay all fees specified on your accepted Order(s). You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information. Except as otherwise specified herein or on an Order, payment obligations are non-cancelable and fees paid are non-refundable. You understand and accept that, unless otherwise expressly stated on the applicable Order, our Services are subscriptions that operate on an auto-renewal basis such that your credit card, debit card, electronic payment, or other method of payment (“Account”) will be assessed the specified fees at regular intervals based on your subscription program (e.g. annual, quarterly, monthly). The fees for each renewal term will be equal to the fees for the immediately prior term, unless we notify you at least thirty (30) days prior to such renewal of a change to the fees. You represent and warrant that you have the legal rights to use the Accounts and hereby authorize us to charge your Account for all Services listed on the Order(s) for the initial subscription term and each renewal term. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order.
4:1 Warranties. Each of the parties represents and warrants that it has all necessary power to enter into and perform its obligations under this Agreement. You further represent and warrant that (a) all information provided to us is accurate and truthful, (b) you have the right to grant us the licenses specified in the Section titled “Content Publishing”, if applicable, (c) the execution and performance of this Agreement does not violate any applicable law or other contract or obligation to which you are a party or are otherwise bound, and (d) the Client Materials do not infringe the intellectual property rights, including any copyrights, trademarks, trade secrets, right of privacy, or right of publicity, of any person.
4:2 Disclaimers. We do not guarantee or warrant that we will find or communicate to you every example or all examples of Internet content about you or the Named Party. We do not guarantee or warrant that we will be successful in adding or removing any on-line reviews or make any claim regarding search engine placement of you company website. THE SERVICES ARE PROVIDED “AS IS” AND WE SPECIFICALLY DISCLAIM, ON OUR OWN BEHALF AND ON BEHALF OF OUR THIRD-PARTY SUPPLIERS, ANY AND ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SUBJECT MATTTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
4:3 Internet Delays and Site Maintenance. The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications and which are outside of our control. We are not responsible for any delays, delivery failures or other damages resulting from such problems.
You agree to indemnify, hold harmless and defend us, our officers, directors, employees, agents, and third-party suppliers or affiliates, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against us or any of our officers, directors, employees, agents, third-party suppliers or affiliates, and pay all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by us or any of our officers, directors, employees, agents, third-party suppliers or affiliates, arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your fraudulent or malicious use of the Services, (iii) your violation of applicable laws, rules or regulations in connection with the Services, (iv) our use of any content or information, including Client Materials or Reviewer Information, you provide to us; or (v) the disclosure of your relationship with us. In such a case, we will provide you with written or electronic notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
6:1 Types of Damages. NEITHER WE, NOR OUR THIRD PARTY SUPPLIERS, WILL BE LIABLE TO YOU OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF WE OR OUR THIRD PARTY SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
6:2 Amount of Damages. OUR MAXIMUM LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (A) THE FEES YOU HAVE PAID TO US PURSUANT TO THE ORDER THAT IS THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM, OR (B) US $50.00. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT INCREASE OUR LIABILITY. IN NO EVENT SHALL OUR SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES.
6:3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth in this Section may not apply to you.
7:1 Term of Order and Renewals. The initial term of each Order shall begin on the date specified on the applicable Order and continue for the period specified therein (“Initial Term”). Unless otherwise specified on the applicable Order, each Order shall automatically renew on a month to month basis unless cancelled per the cancellation agreement clause.
7:2 Termination. Notwithstanding anything contained herein to the contrary, either party may terminate this Agreement at any time on written notice to the other if the other: (a) is in material or persistent breach of any of the terms of this Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or (b) is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally.
7:3 Effect of Termination. On termination for any reason: (a) all rights granted to you under this Agreement, including your right to use the Site or Services, shall cease; (b) we shall stop performing all Services and may, at our discretion, remove materials from the Internet published by us as part of the Services and allow any and (b) you shall immediately pay to us any fees due under this Agreement.
7:4 OMG National’s Triple Free Guarantee will apply to clients meeting the following parametres: either the client website must be hosted by OMG National, or OMG National must be able to add it’s own analytics network package to the client’s website. Next, for the Social Media, and Reviews client must engage with their reputation advisor to distribute the printed review cards, verify that social media requests are added to all outbound electronic communications, and that client has worked with their reputation advisor to ensure that social engagement tools with Facebook, and Google+ have been implemented prior to the measurement of social media fans, likes, circle adds, or follows. Should client wish to exercise the guarantee and receive a refund under its terms, the client must provide OMG National with 30 days notice with which to cure any incomplete objectives. Remedies include: advertising in client service area for additional social media fans, direct mail reminders, and telemarketing efforts. All of which would be implemented and administered at OMG National’s sole expense. Should these efforts fail to obtain all of the objectives, the client will be entitled to exercise the Triple Free Guarantee.
8:1 Privacy. The content we receive that is owned by your company shall never be used for any reason other than promoting your company.
8:2 Links to Other Sites. This services we provide may contain links to other independent third-party Web sites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under our control, and we are not responsible for and do not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
8:3 Copyright Policy. We respect the intellectual property of others and ask that users of our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Site and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent: 1. your physical or electronic signature; 2. identification of the copyrighted work(s) that you claim to have been infringed; 3. identification of the material on our services that you claim is infringing and that you request us to remove; 4. sufficient information to permit us to locate such material; 5. your address, telephone number, and e-mail address; 6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and 7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement
Any claim, dispute or controversy of whatever nature (“Claim”) arising out of or relating to this Agreement shall be resolved by final and binding arbitration. The arbitration shall be conducted in Broward County Florida. By agreeing to this binding arbitration provision, the parties understand that they are waiving certain rights and protections which may otherwise be available if a Claim were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration provision, the right to a jury trial, certain rights of appeal, the right bring a claim as a class member in any purported class or representative proceeding; and a right to invoke formal rules of procedure and evidence.
10:1 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or indemnification). All notices shall be sent to the addresses set forth on the applicable Order, which may be updated from time to time upon written notice to the other party.
10:2 Entire Agreement. This Agreement, including all exhibits and addenda hereto and the accepted Order(s), constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum executed by both parties or any accepted Orders, the terms of such exhibit, addendum or accepted Orders shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or other order documentation (excluding accepted Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.