OMG National - Marketing Services -
Terms and Conditions
Effective Date: September 27, 2019
The Marketing Services Agreement ("Agreement”) along with any attachments, Order Forms, or other information included with the Agreement, sets forth the terms and conditions under which OMG National (“OMG”) will provide the Marketing Services selected by the Client ("you" or "Client").
This Agreement is incorporated by reference into and made a part of any Order Form and related information (as defined below), provided to client by OMG, authorized by you, and submitted to OMG. This Agreement governs the relationship between you and OMG. This Agreement also applies to any Marketing Services you may obtain from OMG without an Order Form, such as free trials, premiums, purchased products, or other limited time offers.
If you are accepting this Agreement on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such legal entity to this agreement, (ii) you have read and understand this Agreement and (iii) you agree, on behalf of the Client, to be bound by this Agreement.
1. MARKETING SERVICES. The Agreement sets forth which Marketing Services are being purchased by you, the costs for such Marketing Services, the term of the campaign or engagement and other relevant details. The Marketing Services include, but are not limited to, the following products:
• Pay Per Click Management (PPC)
• E-Commerce & Managed Shopping Search Management
• Reputation & Brand Management
• Social Media Posting & Content Writing
• Video Production
• Telephone On-Hold Message Production
• Online Directory Management
• Search Engine Website Optimization
• Blog Writing
• Website Hosting, Development and Updates
2. PAYMENT TERMS.
A. Identification of Fees. You agree to pay the amounts set forth in the Agreement and in accordance with the Payment Terms herein (the “Fees”). Fees are generally divided into service fees and setup fees. OMG reserves the right to change any of the Fees at any time, provided that such changes will not take effect until a new Order Form has been executed and delivered to OMG by you. Promotional Credits. If OMG offers any special promotions that provide you with credits or other incentives in connection with purchasing Marketing Services (the "Promotional Credits"), and you cancel one or more of the Marketing Services prior to completion of the Term, then in addition to any other cancellation penalties you may be subject to, you will be required to repay to OMG the full amount of the Promotional Credits.
B. General. Once an Agreement has been accepted by OMG, the Client’s credit card will be charged or bank account shall be ACH debited, in accordance with the Fees. All payments are due in U.S. dollars.
C. Timing of Payment. Fees, as identified on the Agreement, are due on a recurring monthly basis commencing on the Effective Date of the Term, unless stated otherwise. OMG shall have the right to charge the Client Card/Account in accordance with this Agreement. OMG may notify the Client via the email address provided on the Agreement of any issues regarding payment processing. You understand and acknowledge that if at the time of Payment, OMG is unable to secure payment via Client’s elected payment method, the Marketing Services and/or your account may be suspended or terminated if timely payment is not received thereafter.
A. Term. The Term for the Marketing Services being provided shall commence upon OMG’s acceptance of an Agreement on the date of its execution and upon receipt of the initial payment (the “Date of Agreement”) and shall continue for the term set forth therein and in accordance with the terms of this Agreement (the “Initial Term”). Following the Initial Term, any continuing Marketing Services delivered to Client, on a month-to-month basis in accordance with the terms and conditions set forth in this Agreement, unless otherwise agreed to by the Parties.
B. Cancellation. You may cancel any Marketing Service at any time and for any reason by providing a 30-day notice as listed on the Agreement. To cancel your agreement, you may contact your Digital Marketing Specialist by phone at 800-789-4619 or you may request cancellation via email, at email@example.com.
C. Termination for Cause. OMG may terminate this Agreement with 30 days’ prior written notice (the “Notice Period”) if the Client is in material breach of its obligations hereunder and such breach has not been cured at the conclusion of the Notice Period.
D. Suspending Marketing Service. 1. OMG may suspend the Marketing Services at any time for operational reasons (if required by exigent circumstances, including without limitation, significant security breach, propagation of malware, other viruses, or other improper, unlawful or fraudulent use). 2. You may also request that your Marketing Services be suspended, however, it will be in OMG's sole discretion to determine if a suspension will be provided. A request can be made to your OMG Representative to suspend your Marketing Services, but if it is suspended for more than 30 days, you will be responsible for paying a reactivation fee equal to your initial Setup Fee. G. No Refunds. You understand and agree that you will not be entitled to any refunds of amounts already paid to OMG under this Agreement, and any such amounts will be deemed earned by OMG for Marketing Services.
E. No Refunds. You understand and agree that you will not be entitled to any refunds of amounts already paid to OMG under this Agreement, and any such amounts will be deemed earned by OMG for Marketing Services.
F. Effect of Termination; Survival. You understand and acknowledge that due to the nature of the Internet, certain information regarding your company that was posted on the Internet as part of the Marketing Services may continue to be available on the Internet following termination of Marketing Services and/or the Agreement. All provisions of the Agreement that by their sense or nature should survive termination of the Agreement (including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations) shall survive. Without limiting the generality of the foregoing, in the event of any termination, you shall remain liable for any amounts due to OMG as of the effective date of termination.
4. OMG PLATFORM. As part of the Marketing Services and from time to time during the Term, you will provide certain information to OMG, which OMG may input into its proprietary platform (the "Platform"). Accordingly, you hereby permit OMG to input your contact information, credit card or ACH information, and information relating to the Marketing Services into the Platform. OMG will only use such information in connection with the fulfillment of the Marketing Services, as otherwise permitted by the Agreement and as may be legally necessary. In addition, you agree that OMG may, from time to time, use your data to send you emails regarding, Payment Reminders, Production Related Alerts, and other Marketing Opportunities relating to OMG.
6. INTELLECTUAL PROPERTY MATTERS. 6. INTELLECTUAL PROPERTY MATTERS.
A. License to OMG. You hereby grant to OMG and its agents, publishers, or employees, a non-exclusive, royalty-free, worldwide license to use, copy, modify (as permitted in this Agreement or otherwise by Client), publicly perform, display, broadcast and transmit during the term of this Agreement (i) any text, images, logos, trademarks, service marks, promotional materials, product or service information, comments, reviews, photos, audio and video clips and other information ("Client Content") you provide in connection with any Marketing Service and (ii) the Existing Site, to the extent necessary for OMG to perform the Marketing Services. Notwithstanding anything contrary herein, title and ownership of all intellectual property rights of all Client Content shall remain with you or your third-party licensors.
B. OMG Additional Services. If you request that OMG provide any creative or design services, you will remain fully responsible for any content you provide to OMG. With respect to any content created by OMG, as between you and OMG, OMG shall retain ownership of the design elements of such content, excluding any of your trade names, trademarks, service marks or logos or other proprietary elements that may be included within such content, but that predate the creation of the content.
7. YOUR REPRESENTATIONS, WARRANTIES AND COVENANTS. You represent and warrant that you have and shall have all necessary rights and authority to enter into and maintain the relationship with OMG under this Agreement. You represent, warrant and covenant that your Existing Website, any content linked to the Existing Website and any content or materials that you provide to OMG, do not and will not during the term of this Agreement: (a) infringe on any third party's copyright, patent, trademark, trade secret, moral right or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false or misleading advertising or unfair competition; (c) be defamatory or libelous; (d) be pornographic or obscene; or (e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. You further represent, warrant and covenant that the product or service that is being (or will be) promoted on the Existing Website through any Marketing Service is (i) lawful and (ii) not the subject of any ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities.
A. OMG. You will indemnify, defend (with counsel reasonably acceptable to OMG) and hold harmless OMG, their subsidiaries, affiliates and parent companies and each of their respective directors, officers, agents and employees and each of their successors and assigns from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including without limitation reasonable attorneys' fees and expenses) incurred in connection with any claim, action or proceeding arising from or relating to: (i) any breach by you of any representation, warranty, covenant or other obligation contained in this Agreement; (ii) the violation of any rights of any third party, including intellectual property, privacy, publicity or other proprietary rights by you or anyone using your account; (iii) the sale, license, supply or provision of your goods or services; or (iv) any other act, omission or misrepresentation by you. OMG reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. If OMG does assume the defense of such a matter, you will reasonably cooperate with OMG in such defense. You will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to, or any admission of wrongdoing by, any indemnified person or entity, without OMG 's prior written consent.
B. Client. OMG will indemnify, defend, and hold you harmless from and against any loss, damage, cost, liability or expense (including reasonable legal fees) arising out of any claim that any OMG technology used in connection with its provision of the Marketing Services infringes the copyright, patent, trade secret or other proprietary rights of any third party, provided that written notice is given to OMG promptly of such claims and that you provide such assistances as may be reasonably required in the defense of such matters.
9. AS AGENCY. In the event that you are purchasing Marketing Services on behalf of another company, you represent and warrant that this have been authorized by such company to act as its agent in all respects relating to the Agreement, including, without limitation, the making of any elections or giving of any consents. Without limiting the generality of the foregoing, you agree that such company has been made aware of, and agrees to be bound by, the Agreement. Each you and the company, shall be jointly and severally liable for fulfillment of obligations under this Agreement, including all payment obligations. Any additional fees, paid to OMG or the agent, shall be addressed in a separate written agency agreement.
A. As to your company. Except as may be required by applicable law, you shall not disclose the contents of the Agreement to any third party (other than its employees and representatives who are made aware of and agree to this restriction) without OMG’s prior written consent. Notwithstanding anything contrary herein, no party may issue a press release concerning the existence or terms of the Agreement without the prior written consent of the other party. In addition, except as may be required by applicable law, you may not disclose any Confidential Information regarding OMG. "Confidential Information" means and includes all data and information, whether verbal or written, disclosed by OMG, and relating to business plans, strategies, financial matters, research and development, technology, marketing, trade secrets, website design information, inventions, trade secrets, client, Client, vendor, manufacturer, distributor lists, prices and pricing policies, research and development materials, prototypes, marketing plans and strategies, Internet strategies and any other information that should reasonably be recognized as confidential information. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information. Confidential Information will not include information that you can establish is in or enters the public domain without breach of these confidentiality obligations. You acknowledge that the Confidential Information is proprietary to OMG, has been developed and obtained through great efforts by OMG and that OMG regards all of its Confidential Information as trade secrets.
B. As to OMG National. OMG may not share or disclose to any party, without your express consent, any information, including but not limited to: marketing strategy employed within your organization, company policies in use, costs for any media purchases, geographic considerations as to your marketing plan, or any other sensitive information which is exchanged during or after the course of your engagement with OMG.
11. DISCLAIMER OF WARRANTIES. OMG provides all marketing services performed hereunder on an "as is" and "as available" basis, without any warranty of any kind and without any guarantee of continuous or uninterrupted availability. If the marketing services are interrupted or delayed, OMG's sole obligation will be to restore such services as soon as practicable. To the maximum extent permitted by applicable law, OMG disclaims all warranties of any kind, whether express or implied, including but not limited to the implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. OMG will have no liability for any: (i) errors, mistakes, or inaccuracies of content or information; (ii) claims relating to infringement of any third party's intellectual property (other than by the platform) or defamation; (iii) personal injury or property damage resulting from your access to or use of any of the marketing services; (iv) unauthorized access to or use of OMG’s servers or of any personal or financial information; (v) interruption of transmission to or from the marketing services; (vi) bugs, viruses, trojan horses, or the like which may be transmitted on or through the marketing services by any third party; (vii) loss or damage of any kind incurred as a result of the use of any content posted, e-mailed, transmitted, or otherwise made available on through the marketing services; or (viii) matters beyond OMG’s reasonable control. OMG does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party on or through the offerings or any linked website. No advice or information, whether oral or written, obtained by you from OMG or through the marketing services will create any warranty. OMG makes no guarantees with respect to the performance of any marketing service or any product or service.
12. LIMITATIONS OF LIABILITY.
A. Liability. You expressly understand and agree that OMG will not be liable for any direct, indirect, incidental, special, punitive, compensatory, consequential or exemplary damage (including, without limitation, for breach of contract or warranty, negligence or strict liability), or for interrupted communications, loss of use, lost business, lost data or lost profits (even if such party was advised of the possibility of any of the foregoing) (collectively, “damages”), arising out of or in connection with this agreement or the marketing services. These limitations shall apply to the fullest extent permitted by law, even if OMG had been advised of the possibility of such damages. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you.
B. Release. In the event that you have a dispute with third party or any other person related to, arising from, or in any way connected with use of or access to the products and services, you release OMG from any claims, demands, and damages of every kind and nature arising out of or in any way connected with such a dispute.
C. Abuse. The foregoing exclusion of liability will not apply to (i) either party's indemnification obligations, including any amounts payable in connection there- with; (ii) to your confidentiality obligations; and/or (iii) either party's willful misconduct.
D. Limitation on damages. To the maximum extent permitted by applicable law, under no circumstances shall OMG's cumulative, aggregate liability to you or any third party exceed the amounts received by OMG from you during the 12-month period immediately prior to the incident giving rise to such liability. In lieu of refund, OMG shall be permitted, in its sole discretion, to provide "make-good" marketing services, provided such "make-good" marketing services are provided within a reasonable period of time after the liability has accrued.
E. Locality. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent OMG may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of OMG 's liability will be the minimum permitted under such law.
F. Acknowledgement. Each party acknowledges that the other party has entered into the Order Form in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
13. THIRD PARTY BENFICIARIES. You understand and acknowledge that OMG publishers are intended third-party beneficiaries of Sections 7, 8, 9 and 13.
14. DISPUTE RESOLUTION
A. Informal Dispute Resolution. Except for any controversy or claim relating to an Intellectual Property Right (as defined below in Section 15(C), the parties agree that with respect to any matters, disputes, or claims between Client and OMG arising from or related to this Agreement or the parties’ relationship, OMG and Client shall negotiate in good faith to informally resolve the problem or dispute. If the problem or dispute is not resolved satisfactorily within 60 days after OMG or Client receives notice in accordance with Section 16(D) (if OMG), or to the address identified on the Order Form (if Client), either party can submit the dispute to binding arbitration in accordance with this arbitration provision.
B. Arbitration. Except for any controversy or claim (1) relating to the ownership by either party of any Intellectual Property Rights (as defined below in Section 15(C), or (2) properly filed and pursued in small claims court on an individual basis, any and all claims, controversies, or disputes arising under, concerning or relating to the Agreement, its interpretation, validity or termination, or subject matter hereof, whether based on tort, contract, any federal, state or local law, rule or regulation, equitable law, or otherwise, (collectively, “Claims”), shall be submitted and resolved exclusively to confidential binding arbitration in accordance with the rules and procedures set by the American Arbitration Association (“AAA”) by one arbitrator mutually agreed upon by all the parties hereto, and if no agreement is reached within thirty (30) days, then the arbitrator shall be a practicing attorney fluent in English having reasonable experience in corporate and contract law selected by the AAA. The parties agree that arbitration shall be the exclusive forum for resolving all Claims, and each party (i) waives the right to bring any Claims against the other in a court of law and (ii) waives the right to trial by jury in any such Claims. The arbitration shall be conducted in English and take place in Plantation, Florida, in accordance with the AAA rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in the U.S. District Court for the Southern District of Florida or such other court having jurisdiction thereof for enforcement purposes. The arbitrator shall provide the parties with a written basis for the award or order. Each party shall bear its own costs for any Claims relating to the matters described herein. The arbitrator shall award the prevailing party reasonable attorney’s fees and costs, including the arbitration fees. Except as required by law, neither party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the other parties hereto.
C. Exceptions. This agreement to arbitrate does not apply to any of the following: (1) any claim, action or proceeding arising out of or relating to a patent, copyright, trademark, or trade secret right of Client, OMG or any affected third party (collectively, “Intellectual Property Rights”); or (2) claims filed on an individual basis in small claims court properly within that court’s jurisdiction and proceeding on an individual (non-class) basis. The parties expressly agree that arbitration shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class-action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to claims between Client and OMG. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Notwithstanding any other provision in this Agreement, if any portion of this “Exceptions” provision is deemed invalid or unenforceable, then the entire Dispute Resolution Provision (other than this sentence) shall not apply. If a party improperly brings a claim, action or proceeding in a court of law that is properly arbitrable in accordance with this Section 15(B) above, or brings a claim, action or proceeding in arbitration that is not properly arbitrable based on the exceptions identified in this Section, the other party may seek relief in a court located in the jurisdiction in which the underlying action was commenced and, if prevailing, shall be entitled to his, her or its reasonable attorneys’ fees and costs.
D. Amendment. OMG reserves the right to amend this arbitration provision at any time and will notify Client of such amendments. Client’s continued use of the services after receiving notice of any changes to this Section 15 is affirmation of Client’s consent to such changes.
E. Voluntary and Knowing Waiver. By entering into this arbitration agreement, Client acknowledges and agrees that it is waiving the right to trial by jury for any claim subject to arbitration. Client further acknowledges and agrees that it may only bring a claim in its individual capacity, and not in any representative capacity. Other rights that client would have if it went to court, such as discovery or the right to appeal, may be more limited or may not exist.
B. Timing of Claims. You agree that, regardless of any statute or law to the contrary, the dispute resolution process identified in Section 15 applicable to any claim, dispute or controversy arising out of or related to the Agreement must be commenced within 90 days after such claim or cause of action arose or be forever barred; provided that this section shall not in any way limit the time in which claims for infringement or misappropriation of Intellectual Property Rights may be brought.
C. Entire Agreement. These terms and the Agreement set forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. It may be changed only by a writing signed by both parties. With respect to changes to Agreement then in effect, such writing may include email, provided that such changes are limited to a change in the term of the Agreement or the amounts being paid under the Agreement.
D. Notices. Any written notices to OMG required under the Agreement shall be provided by registered mail with proof of delivery to OMG 's then current corporate headquarters address (as shown on http://omgnational.com) Attn: Legal Department and by email to firstname.lastname@example.org. Notices shall be deemed delivered 72 hours after posted in the mail. Any written notices to Client shall be sent to the email provided on the Agreement.
E. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
F. Assignment. You may not assign this Agreement without the prior written consent of OMG. OMG may assign this Agreement by providing written notice to you. The parties' rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns.
G. Independent Contractors. The parties to the Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.
H. Third-Party Services. Some of the Marketing Services may incorporate third-party products and services and OMG may incorporate such services and or products without your consent, provided that such incorporation is deemed imperative to OMG’s performance to you under the referenced Agreement.
I. Referrals. You acknowledge that OMG may provide incentives to third parties to introduce potential Clients to OMG or to direct OMG to potential Clients.
J. Liability Defined. OMG shall have no financial obligation to you under these terms nor under your Agreement beyond the total sum paid by you for said services.