This agreement (the “Agreement”) sets forth the relationship between Profluent Media Inc.. (“Profluent Media”) and you (“You” or “Client”). By accessing or using the Profluent Media website located at www.profluentmedia.com (the “Site”) or accessing or using any profluentmedia.com products or 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 and warrant that You have the legal authority to bind such entity to the terms of this Agreement, in which case the terms “Client” or “You” shall refer to such entity.
IF CLIENT DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CLIENT MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PROFLUENT MEDIA SITE OR SERVICES.
1.1. Description. Profluent Media will provide online brand management and privacy related products and services (“Services”) for the Client that have designated to be the subject of the Services.
1.2. Orders. The online order form, online submission page, invoice, and/or engagement letter (the “Order”) will specify the Services that the Client is licensing. By submitting an Order, Client is submitting an offer to obtain the right to use the Services pursuant to the terms of this Agreement. Client must be the same person, or an authorized representative of the individual or entity, for whom Profluent Media will perform the Services, or Client must otherwise indicate and verify with us the third party’s consent to Client’s provision of the Services on such third party’s behalf.
1.3. Content Publishing. Profluent Media will use reasonable efforts to create and/or optimize existing truthful, positive, or neutral online content (“Welcome Content”), with the specific aim of promoting the Welcome Content on Internet search engine results above the content Client has identified as the unwelcome content (the “Unwelcome Content”). Client hereby authorizes Profluent Media to (a) create original content (including content that represents Client or Client’s designee), (b) use the content, trademarks, logos, photos, videos, advertisements, information, and other materials provided or identified by Client (the “Client Materials”) to create and publish Web content, including content that represents on any websites we deems fit for the purposes of providing the Services. In addition, Client hereby grants us and our authorized personnel a worldwide, royalty-free, fully-paid, non-exclusive, transferable (in connection with an assignment of the Agreement), sub-licensable (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 Profluent Media deem appropriate to perform the Services. Client agrees to respond in a timely manner to our requests to review and approve information generated for Client and acknowledge that Profluent Media may make unilateral content publishing decisions on Client’s behalf should Client fail to meet the applicable response deadlines. Client acknowledges and agrees that Profluent Media 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. Profluent Media acknowledges and agrees that Client will own all right, title, and interest in and to any Client Materials (c) optimization techniques, (d) procure domain names containing Client’s name, the name of Client’s designee, or names similar to Client’s name or Client’s designee, and (e) use a combination of these techniques, to promote Welcome Content above Unwelcome Content on Internet search engine results. Profluent Media will procure any domain names or similar registrations that are required to be procured in connection with the services; we’ll pay all costs relating to these domain names or similar registrations, and will direct the domain names to a location identified by Profluent Media.
1.4. Online Reviews and Ratings. If monitoring and managing Client’s online reviews or ratings is included in the Services, Client represents and warrants that (a) Client is authorized to provide Profluent Media with any customer, patient, and user information that is in connection with such Services (the “Reviewer Information”); (b) our possession and/or use of the Reviewer Information on Client’s behalf in connection with the Services will not violate any contract, statute, or regulation; and (c) any content that the Client and/or the Client’s 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 the Client’s authorship and will only concern the Client and the goods and/or services that the Client provides.
1.5. Privacy and Reputation Advocate. Client authorizes Profluent Media to be the privacy and/or brand advocate (“Brand Advocate”). As the Client’s Brand Advocate, the Client authorizes Profluent Media to use Client information to search the Internet using any tools available and to find and remove any Unwelcome Content from the Internet. Client authorizes Profluent Media to use optimization techniques to attempt to suppress Unwelcome Content and promote Welcome Content on Internet search engines. In addition, the Client agrees to authorize us to contact third parties, including creators or aggregators of personal and/or business information of Unwelcome Content, hosts of personal and/or business information or Unwelcome Content, and other parties who might have control or authority over such content, and to take such actions as we deem appropriate to remove or suppress such Unwelcome Content. Client authorizes Profluent Media to take such action for Client and to identify ourselves as acting on the Client’s behalf. Client understands that such contact and techniques may have unpredictable side effects, including but not limited to negative responses from others. Client agrees to provide the information required for the Services and understand that, in most cases, the higher the quality of information provided by the Client, the better the results the Client will experience.
2. SERVICE PAYMENT POLICY
2.1. Fees and Auto-Renewal. Client agrees to pay all fees specified on the accepted Order(s). Client is 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. The Client understands and accepts that, unless otherwise expressly stated on the applicable Order, our Services are subscriptions that operate on an auto-renewal basis such that the Client’s credit card, debit card, electronic payment, or other method of payment (“Account”) will be assessed the specified fees at regular intervals based on the Client’s 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 Profluent Media notifies Client at least thirty (30) days prior to such renewal of a change to the fees. Client represents and warrants that they have the legal rights to use the Accounts and hereby authorize Profluent Media to charge Client 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.
2.2. The price for these services is $________for the first month and $__________per month until you cancel this agreement in writing addressed to Profluent Media Care of: Cancellation Department 22865 Lake Forest Drive, Lake Forest, CA. 92656. The first month is due upon completion of the web site created by Profluent Media. Client will have the right to terminate this agreement without penalty only after written cancelation has been received by Profluent Media. If client elects to terminate this agreement before providing written consent to Profluent Media, Client will owe Profluent Media the monthly service fee for each month up to and including the month the cancelation notice is received.
2.3. Taxes, Late Fees and Penalties. Client will be responsible for paying any applicable taxes related to each Order. If any fees due to Profluent Media are not received by the due date, then Profluent Media may charge the Client interest on the overdue amount at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If the amount owing under any Order is thirty (30) or more days overdue, Profluent Media may, without limiting our other rights and remedies, accelerate the Client’s unpaid fee obligations for the then-current term so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full.
All sales of all Profluent Media services are final. No refunds shall be given by Profluent Media, or any other party, for any amounts paid for services, including, without limitation, any service charges or fees. Further, the Customer acknowledges and accepts the risk that Profluent Media, may not succeed in finding all Internet content about the Customer. The Customer also acknowledges and accepts the risk that Profluent Media may not succeed in effecting the removal and/or alteration of any Internet content about the Customer. No refunds shall be given by Profluent Media for any reason. Further, the Customer hereby acknowledges and understands that he or she foregoes the right to dispute credit card charges on the grounds that the Company has failed to deliver satisfactory services. The Customer further understands that, because the Company is an Internet-based business, the Company never actually takes physical possession of the customer’s credit card; the Customer acknowledges that, for this reason, the Company would normally have difficulty prevailing in credit card charge disputes with the Customer relative to a physically-based business. The Customer therefore foregoes his or her right to dispute the credit card charges he or she incurs with the Company.
3.1. Acceptable Use Policy. Profluent Media does not allow the Services to be used for illegal activities, nor activities that Profluent Media deems improper for any reason whatsoever in Profluent Media’s sole judgment. Profluent Media reserves the right to take preventative or corrective actions to protect Profluent Media and Profluent Media’s users from unacceptable use by any Client. Client use of the Services is conditional in part to Client compliance with the rules of conduct set forth in this Section, and any failure to comply may result in termination of access to and use of the Services. While using the Services, Client will not to: (a) impersonate any person or entity, falsely state or otherwise misrepresent the Client’s 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 Services; (f) “frame” or “mirror” any portion of the 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 Services; (h) harvest or collect information about or from other users of the Services; (i) use the Site or Services for any illegal activity; or (j) probe, scan or test the vulnerability of Profluent Media 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, Profluent Media retains all right, title and interest in and to the Services, including all related intellectual property contained therein.
3.3. User Accounts and Passwords. Certain features or services offered on or through Profluent Media.com may require Client to open an account (including setting up a Profluent Media.com ID and/or password(s)). Client is entirely responsible for maintaining the confidentiality of the information for the account, including password, and for any and all activity that occurs under the account. As a result of Client failing to keep this information secure and confidential. Client agrees to notify us immediately of any unauthorized use of the account or password, or any other breach of security.
3.5. Links to Other Sites. Profluent Media 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 Profluent Media control, and Profluent Media is not responsible for and do not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. Client will need to make an independent judgment regarding interaction with these Linked Sites.
3.6. Copyright Policy. Profluent Media respects the intellectual property of others and ask that users of our Site and Services do the same. In connection with our Site and Services, Profluent Media has 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 Client believes that one of Profluent Media’s 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
a. Client physical or electronic signature;
b. identification of the copyrighted work(s) that Client claims to have been infringed;
c. identification of the material on our services that Client claims is infringing and that Client requests us to remove;
d. sufficient information to permit Profluent Media to locate such material;
e. Client address, telephone number, and e-mail address;
f. a statement that Client has a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
g. a statement that the information in the notification is accurate, and under penalty of perjury, that Client is either the owner of the copyright that has allegedly been infringed or that Client is 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
3.7. Feedback. Any feedback or information Client provides shall be deemed to be non-confidential, and Profluent Media shall be free to use such information on an unrestricted basis for the purpose of improving clients brand.
4. TERM AND TERMINATION
4.1. 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 for successive periods equal in duration to the Initial Term (each a “Renewal Term”) unless either party provides written notice to the other party of its election to terminate the Order prior to the end of the then-current term.
4.2. 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.
4.3. Survival. On termination for any reason: (a) all rights granted to Client under this Agreement, including the right to use Services, shall cease; (b) Profluent Media 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 Domain Names purchased as part of the Services to lapse; and (c) Client shall immediately pay to us any fees due under this Agreement. Sections 1.4, 3, 4, 5, 6, 7shall survive any termination or expiration of this Agreement.
5. WARRANTIES; LIMITATION OF LIABILITY
5.1. Warranties. Each of the parties represents and warrants that it has all necessary power to enter into and perform its obligations under this Agreement. Client agrees to further represent and warrant that (a) all information provided to us is accurate and truthful, (b) has 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 Client is 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.
5.2. Disclaimers. Profluent Media does not guarantee or warrant that Profluent Media will find or communicate to Client every example or all examples of Internet content about Client. Profluent Media does not guarantee or warrant that Profluent Media will be successful in effecting removal, suppression or alteration, if such service is to be performed, of any Internet content about Client designated as private and/or unwelcome content. Moreover, Profluent Media does not guarantee that the Services will result in a positive change Client online reviews and/or scoring. THE SERVICES ARE PROVIDED “AS IS” AND PROFLUENT MEDIA SPECIFICALLY DISCLAIMS, ON PROFLUENT MEDIA’S 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. PROFLUENT MEDIA DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT’S 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 CLIENT.
5.3. 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. Profluent Media are not responsible for any delays, delivery failures or other damages resulting from such problems. Profluent Media do not guarantee the Services will be operable at all times. Profluent Media reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
5.4. INDEMITY. Client agree to indemnify, hold harmless and defend us, our officers, directors, employees, agents, and third-party suppliers or affiliates, at the Client 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) Client’s breach of any term or condition of this Agreement, (ii) Client’s fraudulent or malicious use of the Services, (iii) Client 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, Client provides to us; or (v) the disclosure of Client’s relationship with us. In such a case, Profluent Media will provide the Client with written or electronic notice of such claim, suit or action. Client shall cooperate as fully as reasonably required in the defense of any claim. Profluent Media reserves the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by Client.
5.5. Types of Damages. NEITHER PROFLUENT MEDIA, NOR OUR THIRD PARTY SUPPLIERS, WILL BE LIABLE TO THE CLIENT 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 PROFLUENT MEDIA OR OUR THIRD PARTY SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
5.6. 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 CLIENT HAS 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.
5.7. 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 Client.
6.1. 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.
6.3. Export Compliance. The Services, Website Content, other technology Profluent Media may make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Client acknowledges that they are not named on any U.S. government denied-party list. In addition, Client shall not permit access to use of the Services, in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
6.4. External Forces. Profluent Media shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond our reasonable control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters. In addition, Client acknowledges that the Services depend heavily on privacy law in the United States, the various States and Territories, and other jurisdictions. The law can and will change in the future and such changes are outside our control. Some legal changes, including but not limited to legislation or judicial interpretation, may render it more difficult or impossible for us to perform the Services.
6.5. Waiver and Severability. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach. If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
6.6. Amendments and Assignment. Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Profluent Media may assign this Agreement (including any Order(s)), without Client consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
6.7. Relationship of the Parties. Our relationship with the Client is that of an independent contractor, and neither party is an agent or partner of the other. Client does not have, and will not represent to any third party that Client has, the authority to act in the name or on behalf of or otherwise to bind us in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability or the exercise of any right or power). Profluent Media is not the Client’s lawyer and any enforcement proceeding related to this contract shall be venue in Orange County, California.
6.8. No legal advice. Profluent Media does not offer legal advice, nor does this Agreement or the Services create any attorney-client relationship or legal representation.
6.9. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California.
6.10. Arbitration Clause. In the event that any of the provisions of this Agreement are held to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect. Any enforcement related to this contract shall be venued in Orange County, California.