Disclaimers

Last Updated September 9, 2023

For valuable consideration, Client and Consultant agree:

1. Term. This Agreement is effective as of this day. The terms and conditions of this Agreement shall be in effect for (12) twelve months.

2. Services. The consultant will, in accordance with the terms of this Agreement, perform the services described in Exhibit A in a workmanlike manner consistent with the standard of care and professionalism customary to its peers. (“Services”).

3. Fees & Payments. The client agrees to promptly pay Consultant for the services in the amount described in Exhibit A (For a description of Exclusive Category, Exclusive Territory, and Services, See Exhibit A), in accordance with the provisions of the Fee Schedule. In the event payment is not made within 10 Days of payment due date, Consultant shall charge, and be entitled to, a late fee of 10% to cover the manpower, interest, and other costs that Consultant pays for carrying overdue invoices from Client. In the event payment is not made within 15 Days of payment due date, the Consultant shall stop all work and reschedule the project timeline, and a $250 reinstatement fee will be incurred to restart work. This fee and all past due balances are due before the Client’s project will progress. All fees will continue to be due and will be charged to the Client even if the work has stopped due to lack of payment. Should the Client choose to leave a credit card on file, all fees will be charged to that card on the day they are due. Client agrees to maintain an adequate credit limit with the card issuer to ensure payments can be processed on time and/or immediately replace card on file with new card and/or authorization form when advised of a declined charge. Upon execution of this Agreement, should Client choose to submit payment through Consultant’s applicable payment portal “Square, Stripe, Paypal, etc.” client acknowledges that their credit card shall be automatically kept on file with said merchant, and all fees associated with this Agreement will be charged to that card, via “Auto Bill Pay” on a monthly basis, on the day they are due, and no invoice will be sent. The client may request a digital receipt for any transaction at any time, and it will be provided promptly. Client acknowledges that all fees are non-refundable, that there are no prorations or fee adjustments, and Client agrees not to dispute, chargeback, or otherwise encumber any payments in any way, for any reason. If Client declines to submit payment through Consultant’s payment portal, thus declining enrollment into Auto Bill Pay, Client shall request a separate invoice, which Consultant shall provide to Client within one (1) business day of said request and subsequently ten days prior to each payment due date, as per the terms referenced herein, unless or until Client provides a credit card to be kept on file or chooses to pay any invoice electronically with a credit card, after which Client will be considered to have enrolled in Auto Bill Pay. Once enrolled in Auto Bill Pay, Client must give Notice, per the terms herein, if Client wishes to be removed from Auto Bill Pay. Notice must be given at least 15 days before Client’s next payment due date to allow for processing and invoice creation.

4. Expenses. Client shall reimburse Consultant for all reimbursable and jointly approved itemized expenses with third-party vendors and for any costs incurred for prizes or ads for social media promotions. Any additional work request will be paid within 30 days of completion and comply with the rules of this Agreement.

5. Laws, Rules, and Regulations. Consultant shall perform the Services in accordance with all applicable local, state, and federal laws and regulations.

6. Independent Contractor. It is the intention of the parties to this Agreement that the Services rendered hereunder shall be so rendered by Consultant as an independent contractor and not as an employee, agent, or partner of Client. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Client and Consultant or any employee or agent of Consultant. Both parties acknowledge that the Consultant is not an employee for state or federal tax purposes. Consultant shall retain the right to perform services for others, outside of the territory and category delineated herein, during the entire term hereof.

7. Chargebacks.

   1. Client acknowledges and agrees that all fees are non-refundable. Client understands and agrees that all fees due and payable as a result of Consultant’s services under this Agreement shall not be prorated or subject to any type of apportionment for any month in which the services halt before completion of the period or commence after the beginning of the period. All fees are due, payable, and must be collected on a calendar month basis.  Client shall not charge back any amounts charged to its credit/debit card. There is no reason for a chargeback to ever be filed. Client waives any rights to chargeback fees with its credit/debit card provider and agrees not to dispute, chargeback, or otherwise encumber any payments in any way for any reason. Unnecessary chargebacks are theft and can be prosecuted. If Client feels that its debit/credit card was used fraudulently by Consultant, please contact Consultant for immediate resolution.

   2. If Client claims a chargeback with their credit/debit card provider, then Client shall be liable to Consultant for attorney’s fees incurred in challenging the chargeback.  

8. Confidentiality. The consultant agrees to maintain the confidentiality of files or other information it is provided or develops during the course of its work for the Client. It is understood, however, that disclosure of certain information provided by Client may be necessary or appropriate in the course of Consultant’s representation of Client. Such disclosures shall be made upon consultation with the Client or Client’s designated representative and with written consent from the Client. Further, this Agreement and all methodology disclosed by the consultant to the Client shall not be disclosed to any third party other than the client’s legal counsel. Reviews that are written by, with the knowledge of, or at the instruction of Client, Client’s employees, Vendors, Family Members, or Representatives, whether verbal, online, or in print, without Consultant’s express written permission, will be considered a violation of this Confidentiality Agreement. Violation of this Confidentiality Agreement will result in termination of the Agreement, forfeit of all services and work products, and bring due the entirety of the remaining expenses and fees through the end of the Agreement Term. In the case of the Consultant’s violation of Confidentiality of Client, the Agreement will terminate with no further recourse to the Client. The Parties understand and agree that this Paragraph is a material provision of this Agreement and that any breach of this Paragraph shall be a material breach of this Agreement, and that each Party would be irreparably harmed by violation of this provision.

9. Force Majeure. Notwithstanding anything to the contrary contained herein, neither party shall be liable for any delays or failures in performance resulting from acts beyond its reasonable control, including, without limitation, acts of God, acts of war or terrorism, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties or civil unrest. Notwithstanding the foregoing, in the event of such an occurrence, each party agrees to make a good faith effort to perform its obligations hereunder. The client understands and agrees that SEO and the terms of this Agreement cannot be paused for any reason. All payment obligations under this Agreement will remain in force until canceled, per the terms of this Agreement, regardless of the Client’s desire to pause or reasoning. The client acknowledges and agrees that the Consultant cannot guarantee that work performed will be error-free (we’re human!), so the Consultant cannot be liable to Client or any third party for damages, including lost profits, lost savings, or other incidental, consequential or special damages. Except as expressly stated in this Agreement, the Consultant expressly disclaims and negates any implied or express warranty of merchantability, any implied or express warranty of fitness for a particular purpose, and any implied or express warranty of conformity to models or samples of services.

10. No Guarantee Outcome. The Consultant makes no guarantee of outcomes as a result of the services provided under this Agreement or future sales of any products and/or services.

11. Client Participation. The client agrees to assist in the SEO initiatives by promptly answering and/or returning all emails and telephone calls. The client agrees to give to Consultant, and maintain, throughout the course of this Agreement, Admin access to Client’s website, hosting, social media portals, local listing directory sites, review portals, etc. Client agrees that the Consultant is not responsible for the continuation of work if Client removes the Consultant’s Administrative access to any of Client’s online portals, i.e. website, hosting, domain, social media, etc… at any time. Violation of this provision will not affect Client’s payment obligations under the fee schedule. Through the regular course of SEO work for Client, Consultant will be developing and posting content, either original or referenced from applicable third parties to the Client’s website, social media portals, local listing directory sites, review portals, etc. The client agrees to allow the Consultant to determine what content will be beneficial to the SEO campaign and to post said content to applicable portals. If approval of content before posting is necessary, the Client must give Notice to Consultant on their onboarding form. Client agrees that NLM will have full control over design, development, implementation, campaign(s) strategy & setup, and execution of Clients entire marketing strategy as a whole.

12. Webmaster – IT – Hosting. Client agrees to engage and maintain on-demand, subscription, or retainer-based relationship/s with reputable Webmaster, IT, and Hosting companies for the website/domain referenced in this Agreement. The Client agrees that the Consultant is not responsible for Hosting/Server, Website, Email Client, Database, Virus, Malware, etc… error Diagnosis, Maintenance, or Repairs. Engagement of an Ace Optimized web maintenance package will be offered and must be executed at the time of onboarding if Ace Optimized is to be the Webmaster of record.

13. Method of Communication. Client agrees that only written communications sent by email to Consultant will be considered “communication given”. During the course of this Agreement, Client and Consultant may collaborate over phone calls, texts, Skype, screen share, etc… However, to centralize communication and ensure delivery, Client agrees to summarize any requests, change orders, edits, approvals, disapprovals, etc., in email form, and Client agrees to copy [email protected] on all email communications.

14. Acceptance of Work. Client agrees that all work items, tangible and online will be deemed accepted, whether edits/changes are needed or not, within 5 days of receipt by Client unless explicitly rejected in writing as per the Notice clause of this Agreement. Client agrees that the Agreement is not a monthly subscription but a spreading out of the total costs of the 12-month project.

15. Agreement Modifications. Client and Consultant agree that the terms and conditions of this Agreement shall constitute the entire Agreement between the parties’ signatory hereto as to the matters set forth herein. Client and Consultant may modify the terms of this Agreement only by executing a written Agreement Addendum, which shall reference this Agreement and shall be executed by the parties’ signatory hereto.

16. Dispute Resolution and Choice of Forum.  

    1. The parties agree that any dispute, claim, or controversy arising out of or in connection with this Agreement, including the breach, termination, enforcement, interpretation, or validity thereof (“Dispute”), shall be submitted to and finally resolved by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Commercial Arbitration Rules then in effect. The seat or legal place of arbitration shall take place in Broward County, Florida, before a single arbitrator who is mutually agreed upon by the parties. The arbitrator must be an attorney, judge, or retired judge licensed to practice law in the State of Florida. The arbitrator shall issue a written award which shall contain, at a minimum, the names of the parties, a summary of the issues in controversy, and a description of the award issued. The arbitrator’s decision shall be final and binding and not appealable to any court. Judgment in conformity with the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The party initiating the arbitration must bear the costs and fees related thereto.

    2. Despite the above clause 16a., the parties agree that Consultant may, at its sole option (and regardless of whether Consultant is a claimant or respondent) may, choose to submit any Dispute to the state courts of competent jurisdiction sitting in Broward County, Florida, which in that case will have exclusive jurisdiction to determine the Dispute. Each party agrees that a final judgment in any such litigation is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

    3. If Client has already commenced arbitration proceedings in relation to a Dispute before Consultant has commenced court proceedings, it is agreed that, on the demand of Consultant, the arbitration proceedings are to be discontinued within 20 days after Consultant has commenced court proceedings in respect of the Dispute. Consultant must deliver the demand for discontinuance within 10 days of receipt by Consultant from Client of the request for arbitration initiating that arbitration and must commence the court proceedings within 20 days of the demand for discontinuance. It is agreed that, on commencement of the court proceedings by Consultant, any arbitrator already appointed, or to be appointed, will have no jurisdiction in respect to the Dispute. Client will pay all costs incurred in connection with the arbitration proceedings.

    4. Client and Consultant agree that the prevailing party in any Dispute arising hereunder (and regardless of whether determined through an arbitration or litigation proceeding) shall be entitled to an award of its reasonable attorney’s fees and legal costs against the non-prevailing party.

17. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

18. Limitation of Liability. 

    1. IN NO EVENT SHALL CONSULTANT BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

    2. IN NO EVENT SHALL CONSULTANT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO CONSULTANT, IF ANY, PURSUANT TO THIS AGREEMENT, IN THE YEAR, IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

19. Collection Costs. In the event that Consultant incurs any fees, costs, and/or disbursements in an effort to collect on unpaid fees, in addition to interest on the unpaid balance, Client agrees to reimburse Consultant for these expenses.

20. Automatic Renewal. At the end of the initial term and all subsequent terms, this Agreement shall automatically renew for an additional period equal to the initial term upon the same terms and conditions contained herein, except that all applicable fees contained herein shall increase by 6%, per annum. To avoid Automatic Renewal, the Client must give Notice to Consultant of Termination at least 30 days prior to Agreement end date. Automatic Renewal will not apply to one-time retainers, if selected within Exhibit A.

21. Termination. The client may terminate this Agreement at any time upon written 30-day Notice of termination, during which the client will continue to incur all applicable fees according to the fee schedule. The client acknowledges and agrees that all fees once remitted by any means or charged by Credit Card or ACH transaction, are non-refundable. All work items, tangible and online, shall remain property of Consultant until completion of all payments and additional incurred costs. The Consultant may terminate this Agreement at any time, upon written 30-day Notice of termination, during which Consultant will continue to perform services as described herein, and the client will continue to incur all applicable fees according to the fee schedule. Client agrees that Consultant is under no obligation to provide termination instructions as they are detailed herein.

22. Notice. Except where expressly written, All Notices under this Agreement shall be in writing and shall be deemed given only when personally delivered or three (3) days after being sent by prepaid certified or registered U.S. mail to the address of the party to be Noticed as set forth herein or such other address as such party last provided to the other by written Notice. Email is not an acceptable method for giving Notice. Acceptance of Notice by Consultant, by any other means, shall not be deemed a waiver of Client’s responsibility to provide Notice under this Agreement as written.

    1. To Consultant:

       1. Ace Optimized, LLC.

       2. 66 West Flagler Street Suite 900 Miami, FL 33130

23. Execution and Integration. The representatives of Client and Consultant warrant that they have the authority to sign on behalf of and bind their principal/s and have caused this Agreement to be duly executed the day and year first above written. Any and all communication and/or involvement/participation, acknowledging, whether explicitly or implicitly, any part of the services referenced herein and/or the terms of the Agreement, involving the principals of the Client, will for the purposes of this Agreement, by common law and legal precedent, be considered a ratification of the Client’s agent’s authority to bind the principal/s. This Agreement sets forth and constitutes the entire Agreement and understanding of the parties with respect to the subject matter hereof. This Agreement supersedes any and all prior Agreements, negotiations, correspondence, undertakings, promises, covenants, arrangements, communications, representations, and warranties, whether oral or written, of any party to this Agreement. The parties acknowledge that each has had an opportunity to retain an attorney to review the terms and conditions of this Agreement. No provision hereof shall be interpreted against the interests of one party solely because such provision was drafted by such party or by the attorney for such party.

24. Cumulative Rights. Any specific right or remedy provided in this Agreement will not be exclusive but will be cumulative of all other rights and remedies. Rights and remedies under this Agreement may be used exclusively by Consultant to enforce the Terms of other Agreements that Consultant may have with Client, if applicable.

25. Severability. If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.

Exhibit A

Monthly Retainer. Term: Twelve Months. First Month’s Payment will become due upon the execution of this agreement. Fee Schedule: retainer total per month for (11) months total. Deliverables included will be mutually agreed upon between the Consultant and Client. The monthly retainer will include a set number of hours every month. Any unused hours will not carry over into the next month. Hours will replenish on the execution day of this agreement every month.

One-Time Retainer. Term: One-Time Payment. One-Time Payment will become due upon the execution of this agreement. Deliverables included will be mutually agreed upon between the Consultant and Client. The one-time retainer will include a set number hours. These hours will not expire and will be available for the Client to use until all hours have been exhausted. 

Monthly Website Maintenance. Term: Twelve Months. First Month’s Payment will become due upon the execution of this agreement. Fee Schedule: retainer total per month for (11) months total. Any unused hours will not carry over into the next month. Hours will replenish on the execution day of this agreement every month. Monthly deliverables include:

• Basic Package
  
  • Plugin Updates
  • Monthly Offsite Backups
  • Security & Malware Scans 
• Premium Package
  
  • Plugin Updates
  • Monthly Offsite Backups
  • Security & Malware Scans
  • Normal Priority Support
  • CMS Updates & Maintenance 
  • Malware Cleanups
  • Performance Monitoring

Website Design & Development Retainer Project. Term: One-Time Payment. One-Time Payment will become due upon the execution of this agreement. All subsequent hours will be billed in 10-hour blocks at our agency rate of $150/hour once the Consultant has reached 39 hours of work completed. All subsequent retainers shall be due before work will continue. Unused hours will not be refunded, rather they will be used for post-launch maintenance and warranty issues/matters, if applicable. Client is under no obligation to purchase more hours or continue with the project beyond the initial retainer. Should the Client choose to leave a credit card on file, all fees will be charged to that card as they become due. Client agrees that the Consultant will design and develop one (1) website based on the Client’s Website and Design & Development Onboarding Questionnaire, to be sent via email immediately following the execution of this agreement.