These Terms of Service (“Terms”) apply to all client engagements unless specifically provided otherwise in an executed agreement between Adster Creative Inc. (“Adster”) and a Client, and shall be deemed incorporated by reference to any such executed agreement.
Adster Creative INC. does not warrant that the functions contained in these Web pages or the Internet Web site will meet The Client’s requirements or that the operation of the Web pages will be uninterrupted or error-free. The entire risk as to the quality and performance of the Web pages and Web site is with client. In no event will Adster Creative INC. be liable to the client or any third party for any damages, including any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate these Web pages or Web site, even if Adster Creative INC. has been advised of the possibility of such damages.
Website, flexLOCAL™, SuperDASH™, SEO & Internet Marketing Program – Terms of Service & Contractual Obligations
Adster Creative INC. has no control over the policies of search engines, PPC advertising platforms, social media web properties, user generated content websites and online directories with respect to the rankings, types of sites and/or content that they accept or publish now or in the future. Without limiting the generality of the foregoing, the Client acknowledges that it has been specifically advised and that it understands that Adster Creative INC. cannot guarantee any specific results obtained from the performance of digital marketing and SEO services. The following terms and conditions specifically apply to the following services:
A. SEO Services – Rankings / Inclusion / Good Faith:
Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms and other competitive factors, Adster Creative INC. does not guarantee #1 positions or consistent top 10 positions for any particular keyword, phrase or search term.
- Some search engines and directories may take as long as 2 to 4 months, and in some cases longer, after submission to list and/or “rank” The Client’s website. Adster Creative has no control over the policies of third-party directories, search engines, or Citational properties. Further, The Client site may be excluded from a Search Engine or directory at any time at the sole discretion of said search engine or directory.
- Some Directories and third party websites offer expedited or premium listings for free. Adster Creative INC. may provide consulting regarding these premium listings, and should The Client wish to participate in said directories, payment of these fees shall be the sole responsibility of The Client unless otherwise stated in The Clients contract.
- Occasionally, search engines will drop listings for no apparent or predictable reason. Often listings will “reappear” or “bounce” without any additional submissions. Should the listing not reappear, Adster Creative INC. will re-submit the site based on the current policies of the search engine in question and make all attempts within reason to have the listing re-included.
B. Onsite Optimization – SEO Setup:
If client’s website is lacking in relevant, useful content in the opinion of Adster Creative INC’s expert SEO staff for respective ‘Reserved Keyphrases’ for SEO services, The Client shall either provide additional informative content or approve content created by Adster Creative INC’s content development team. In some cases, additional fees may be incurred that may be covered in The Client’s SETUP FEE and/or Milestone 1 FEE.
C. Social Media and Reputation Monitoring:
Adster Creative INC. cannot control the publication of user-generated content including reviews, comments, or opinions as expressed in the aforementioned social media and user-generated content websites. However, for the duration of your Online Internet Marketing Program, Adster Creative INC. will monitor the world wide web for reviews, comments, and opinions with respect to the Client Website, notify The Client of these comments, and work with The Client to create a predominantly positive opinion of The Client’s Website and Brand.
D. Onsite Optimization – SEO Ongoing:
Adster Creative INC. will use Google webmaster tools and Google Analytics to improve user engagement metrics and diagnose performance issues with The Client’s website with the purpose of improving search engine rankings (for SEO Programs). However, Adster Creative INC. cannot guarantee that the optimization of user experience will result in an increase in search engine rankings, nor can Adster Creative ensure the ongoing proper optimization of content created by The Client. Adster Creative INC. is not responsible for changes made to the client’s website by non-Adster employees or other third-parties that adversely affect the search engine rankings or performance of the Client’s website.
E. flexLOCAL™, SuperDASH™ & Search Engine Optimization Management Fees:
flexLOCAL™, SuperDASH™ & Search Engine Optimization fees are due on the first of every calendar month, or, on your anniversary billing cycle. All FEES will be set to auto withdrawal using our payment gateway and If payment has not been received within 3 days of the due date, interruption to your website hosting, marketing campaign and/or CMS may occur including removal of applicable AdvertiSITE.
F. Website Hosting Fees:
Any client that is not engaged in an Active Website Marketing Package whose web property resides on Adster Creative’s dedicated server will be subject to Adster Creative INC’s default website hosting and CMS access fee charges. This fee is $300 per year (minimum) and is due on the calendar date and subsequent months of when The Client’s website went active or stopped their active marketing package.
G. PPC Services – Clicks – flexLOCAL™:
Adster Creative INC. is engaged to manage and optimize The Client’s PPC, Google Ads, BING etc. spend. The cost of Individual Clicks are payable to Google, BING etc, and payment of clicks are the sole responsibility of The Client unless otherwise mentioned in this contract. Non-payment of PPC clicks, Expired Credit Cards, or other interruption in payment of PPC fees may interfere with Adster Creative’s ability to manage The Client’s PPC account(s), and the onus is on The Client to ensure that PPC fees are paid to respective vendors. Further, Adster Creative INC. has no control over the process of individual clicks, factors that may affect the price of clicks, but will work closely with The Client to ensure that daily, weekly, and monthly budgets are adhered to.
H. PPC Services – Access:
Adster Creative INC. will be added as a manager to The Client’s Google Ads, BING accounts etc. and Google Analytics account via MCC (My Client Centre). The client maintains full ownership of their Google Ads or other PPC accounts and any changes, modifications, or improvements (with the exception of proprietary Adster Creative INC scripts, automation & tools) remain The Clients. The Client may remove Adster Creative INC. as a manager at any time once their contractual obligations are complete.
I. Onsite Optimization (if running flexLOCAL™ Premium / SEO Program):
Adster Creative INC. will use Google webmaster tools and Google Analytics to improve user engagement metrics and diagnose performance issues with The Client’s website with the purpose of improving search engine rankings. However, Adster Creative INC. cannot guarantee that the optimization of user experience will result in an increase in search engine rankings, nor can Adster Creative ensure the ongoing proper optimization of content created by The Client. Adster Creative INC. is not responsible for changes made to the client’s website by non-Adster employees or other third-parties that adversely affect the search engine rankings or performance of the Client’s website.
J. Copyright to flexLOCAL™ CMS / AdvertiSITE™ (if running flexLOCAL™ Lite):
While The Client is engaged with ADSTER CREATIVE INC, they maintain full license to use the flexLOCAL™ AdvertiSITE™. Should the client wish to terminate their monthly flexLOCAL™ service, or move their website to a third party hosting provider, the following shall apply: Adster Creative retains sole possession of the flexLOCAL™ website building software and the flexLOCAL™ content management system.
- This software is non-transferable and FTP access due to the proprietary nature of our build software remains at the sole discretion of ADSTER CREATIVE INC. The website logos, text, images, graphics, information, and overall assembled works will be transferred to the client. Adster Creative will assist in good faith, and within reason the re-assembly of these collected works in the clients desired platform.
- Once the client’s AdvertiSITE™ goes live, any changes will be billed out at our hourly development rate. The Client unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Adster Creative Inc. Inc. for inclusion in the Internet Marketing Program are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify and defend Adster Creative Inc. and its subcontractors from any liability (including attorney’s fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Client.
K. Cancellation/termination of Website, flexLOCAL™, SuperDASH™, SEO & Internet Marketing Programs:
For clients not in a fixed term contract, or, who have finished their initial engagement and are on month to month billing. If you wish to cancel your internet marketing service, Adster Creative Inc. must receive written request 30 days prior to your next billing cycle. Example – You wish to cancel your internet marketing service on July 15 / 2013. If you wish to cancel, we must receive written request on or before June 14th / 2013.
- For clients in a 3, 6 or 12 month contracts (or longer), please refer to SECTION T (Term/Termination) for our full terms relating to termination of signed contracts.
L. Payment collection for flexLOCAL™ & SEO Services:
Upon payment of your first monthly fee, you will enable and authorize Adster Creative Inc. to charge the credit card specified in your registration for all such fees corresponding to the selected Adster Creative Inc. service. Unless stated otherwise on Adster.ca’s web pages applicable to a given Adster Creative Inc. service, each Adster Creative Inc. service will be provided and will automatically renew, monthly, quarterly, semi-annually or yearly, depending upon the term selected by you when you signed up for the Adster Creative Inc. services), until cancelled in accordance with this section. Your credit card will be charged in advance for the following applicable term’s service. NO REFUNDS WILL BE AVAILABLE ON ACCOUNT OF ANY SERVICE CANCELLATION BY EITHER PARTY. Without limiting any of the restrictions above, you acknowledge and agree that NO REFUNDS OR PARTIAL REFUNDS WILL BE ISSUED: (a) FOR ANY SERVICE THAT YOU CANCEL AFTER RENEWAL HAS TAKEN PLACE. (b) Adster.ca shall not give any refunds for unspent money amounts that may be in any or all of the paid search engines accounts upon cancellation.
Client acknowledges the following with respects to their Internet Marketing Program:
- All fees are non-refundable.
- All fees, services, documents, recommendations, and reports are confidential.
M. Completion Date:
Adster Creative Inc. and the Client must work together to complete the Internet Marketing activities in a timely manner. We agree to work expeditiously to complete the Internet Marketing activities according to agreed-upon schedules. All text, documentation, or other content provided by Client must be provided in an electronic form approved by Adster Creative Inc. Failure of Client to provide information requested by Adster Creative Inc. in the form requested in a timely manner in their sole judgment, Adster Creative Inc. may cancel the corresponding active agreement. Adster Creative Inc. is not responsible for providing any special security measures relating to the Client’s website space.
N. Publishing & Internet Standards:
Adster Creative Inc. makes no claims of suitability or correctness to any standard of publishing or Internet Standards. Adster Creative Inc. may charge at its standard rate or employ subcontractors for the effort involved to resolve whatever problems may arise related to problems arising from any damage to the website content. Adster Creative Inc. does not warranty that the website is immune to 3rd party damages, hacking, the presence of a virus, spyware, etc. and is not responsible in any way for its presence or removal.
O. Compliance with Law and Electronic Commerce Laws:
The Client agrees that the Client is solely responsible for complying with any applicable laws, regulations, taxes, and tariffs applicable in any way to the Client’s website, the Client’s business, the Internet Marketing Program or any other services contemplated herein. The Client is specifically advised to consult with qualified lawyers in connection with its website and business.
P. Internet Marketing Program Copyright:
Copyright to the finished Internet Marketing Program produced by Adster Creative Inc. will be owned by Adster Creative Inc. The Client will be assigned rights to use the Internet Marketing Program, once corresponding payments under this agreement and any additional charges incurred have been paid. Adster Creative Inc. and its subcontractors retain the right to display/discuss elements of the Internet Marketing Program as examples of their work in their respective portfolios.
Adster Creative Inc. and its representatives acknowledge that during the engagement it will have access to and become acquainted with various trade secrets, inventions, innovations, processes, information, records and specifications owned or licensed by the Client and/or used by the Client in connection with the operation of its business including, without limitation, the Client’s business and product processes, methods, customer lists, accounts and procedures. Adster Creative Inc. agrees that it will not disclose any of the aforesaid, directly or indirectly, or use any of them in any manner, either during the term of this Agreement or at any time thereafter, except as required in the course of this engagement with the Client. All files, records, documents, specifications, information, letters, notes, original artwork/creative, notebooks, and similar items relating to the business of the Company, whether prepared by Adster Creative Inc. or otherwise coming into its possession, shall remain the exclusive property of the Client. Upon the expiration or earlier termination of this Agreement, or whenever requested by the Client, Adster Creative Inc. shall immediately give to the Client all such files, records, documents, specifications, information, and other items in its possession or under its control.
R. Legal Notice:
The Client represents and warrants that the materials and information it provides to Adster are accurate and complete and that it is the owner or licensee of all intellectual property rights sufficient to enable Adster to edit, reproduce and otherwise use, publish and distribute such materials in performing services for the Client. The Client shall defend, indemnify and hold Adster harmless from and against any third-party liabilities, demands, investigations, actions, claims, damages, judgments or expenses, including reasonable lawyers’ fees and costs (collectively “Claims”) that arise out of or relate to: (i) information, statements or materials (including any Claims relating to intellectual property rights therein), prepared or provided by the Client, that the Client directed Adster to use or that were approved by the Client including, without limitation, any Claims of infringement or misappropriation of copyright, trademark, patent, trade secret or other intellectual property or proprietary right, infringement of the rights of privacy or publicity, or defamation or libel (ii) product liability or death, personal injury or
property damage arising out of, or relating to, the Client’s acts or omissions or the Client’s products, services or equipment; and/or (iii) the Client’s negligence or willful misconduct.
The information, products and services offered by Adster are provided “as is” and without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, Adster disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Adster does not warrant that the services performed for the Client or that the work product, including but not limited to software and websites, or any of their respective functions will be accurate, uninterrupted or error-free, that defects will be corrected, or that any part of the services site, including the Client’s website will be free of viruses or other harmful components.
- We do not warrant or make any representations regarding the use or the results of the use of the site or information on this site or on third-party sites in terms of their correctness, accuracy, timeliness, reliability or otherwise.
- Adster’s aggregate liability arising out of, or relating to, this agreement (whether in contract, tort, or other legal theory) shall not exceed the amount of fees (exclusive of costs and expenses) paid by the Client to Adster pursuant during the prior 12 months.
- In no event shall Adster be liable to the Client for any special consequential, punitive or other indirect damages (including but not limited to, lost revenues or profits), whether or not notified of such damages.
- This Section shall survive termination or expiration of the engagement and/or agreement with Adster.
S. Change Orders:
Any additional work not specified in an executed contract with he Client must be authorized by a written change order. If the Client wants to expand the scope of the services as originally set out in an executed contract or wants additional services, the Client and Adster shall mutually agree upon the additional services to be performed, the cost of same, and either amend the current scope or execute a new contract. All prices specified in contracts will be honored for 45 days after both parties sign this contract.
T. Term / Termination:
The Terms of Service shall be effective on the date hereof and shall continue, unless terminated sooner as may be permissible only in accordance with the below provisions, or until the Completion Date. This is a fixed term contract for the provision of services. There is no right of the Client to terminate this contract earlier than provided for, and the client is responsible for the entirely of the fees and charges applicable throughout the term, unless the Client terminates in accordance with Section T(a) or T(b), below. Either Party may terminate this Agreement upon notice in writing if:
a) The other Party is in breach of any material obligation contained in this Agreement, which is not remedied (if the same is capable of being remedied) within 30 days of written notice from the other Partys giving notice of the breach to do; or
b) A voluntary arrangement is approved, a bankruptcy or an administration order is made or a receiver or an Administrative receiver is appointed over any of the other Party’s assets or an undertaking or a resolution or petition to wind up the other Party is passed or presented (other than for the purposes of amalgamation or reconstruction) or any analogous procedure in the country of incorporation of either party or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding- up petition or make a winding-up order in respect of the other Party.
Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force survival or the continuance in force of any provision hereof which is expressly or by implication intended to come into or survive or continue in force on or after such termination.
- The Client acknowledges that even if the Client advises the Agency that it wishes to cease receiving the services from the Adster at any point throughout the term, or if the Client advises that no services are currently required at some point and/or for some duration of the term for any reason, including but not limited to Client project interruption or delay, e.g. if there is any discontinuation, pause, or suspension of the services requested by the Client, the Client shall nonetheless continue to be responsible for all fees which shall continue to be payable throughout the remaining balance of the term, together with any applicable charges without setoff, discount, or requirement for mitigation by Adster. Notwithstanding the foregoing, upon Adster being advised by the Client that the Client no longer wishes to receive the services notwithstanding that a remaining balance of the term exists, Adster may elect to accelerate all the payment of the fees and require that the remaining balance of the fees be payable within thirty (30) days.
- The Client acknowledges and agrees that such obligation to pay the fees in full together with any applicable charges, are liquidated amounts without any obligation or duty of Adster to mitigate, which fairly compensate Adster for its agreement to be ready, willing, and able to provide the services to the Client throughout the term, the allocation of resources, the front-loading of work to be performed by Adster throughout the term, and/or lost opportunity costs, regardless of whether the Client wishes to stop or to cease receiving the services at any point throughout the term. In the event any court of competent jurisdiction finds that the Client’s obligation to pay the fees in full is subject to mitigation or a right of termination notwithstanding the terms herein, Adster shall be entitled at its option to elect, and the Client agrees to pay, $150.00 per hour plus applicable taxes for all services rendered to the Client throughout the Term, less all amounts already paid, instead of and in lieu of the fees.
Adster may terminate this Agreement upon 60 (sixty) days’ written notice to the Client for convenience.
U. Non Payment / Late Payments:
Payments must be made promptly (auto-billing through Freshbooks on billing anniversary date) based on the terms of this Internet Marketing Program. In case collection proves necessary, the Client agrees to pay all fees (including all attorney’s fees and court costs) incurred by that process. Interest shall accrue on all unpaid accounts after 30 days, at the rate of 2% per month, compounded.
V. Website Marketing:
Due to the nature of our Internet Marketing Programs, it is necessary for Adster Creative INC. to collect payment in advance for certain services. If payment(s) have not been received within 3 days of the due date, interruption to your Internet Marketing Program may occur including, but not limited to:
- Freezing/pausing of Pay-Per-Click accounts
- Removal of links/citations
- Limited access to SuperDASH™ Reporting Dashboard and/or Website
- Limited access to client portal and website CMS
X. Account Management & Dedicated Account Management
Monthly account management and/or dedicated account management is limited to up to 60 minutes per month and does not carry over if unused unless otherwise stated in the letter of engagement and client contract.
Y. Choice of Law, Jurisdiction and Attorney’s Fees
This Agreement shall be construed in accordance with the laws of Alberta, Canada, regardless of any conlifct of law rules. The Client hereby attorns to the exclusive jurisdiction of the courts located in Edmonton, Alberta. In the event that any action or proceeding (including, without limitation, any alternative dispute resolution mechanism agreed to by the parties) is brought in connection with this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees. This section shall survive termination or expiration of this Agreement.
Z. Entire Agreement
These Terms of Service, together with the executed Agreement between Adster and the Client, constitutes a single agreement, as well as the entire agreement with respect to the subject matter hereof, supersedes any prior or contemporaneous agreement between the parties, whether written or oral, with respect to the subject matter hereof, including but not limited to any proposal provided by Adster to the Client and may be modified or amended only in writing.
How to Contact Us
If you have any questions about our Terms of Service, the practices of this site, or your dealings with Adster with respects to your contract, you can contact us at email@example.com, or by visiting our contact page.