Terms Of Service
Terms Of Service for Apex SEO
1. DESCRIPTION OF SERVICES
Beginning on the date these Terms of Service (the “Contract”) are first accepted, APEX SEO LLC (or “Provider”) will provide to you and your business (“Recipient”) the following services (collectively, the "Services"):
During the Term of this Contract, Provider shall use commercially reasonable efforts to generate qualified leads using one or more lead-generating platforms, such as Facebook Ads. A “lead” refers to a set of names, email addresses, and phone numbers. While Provider shall use such commercially reasonable efforts, Provider cannot
guarantee (and expressly disclaims any guarantee) that any particular number of qualified leads will be generated, or that any particular number of qualified leads will generate revenue for Provider.
2. PAYMENT
Recipient shall pay the amount shown on Provider’s monthly invoices (the “Payment Amount”) no later than 5 business days after receipt of the invoice. The Payment
Amount includes Provider’s retainer fee and all costs incurred by Provider in providing Services hereunder, including payments made by Provider on Recipient’s behalf to lead-generating platforms. The parties may agree in writing to increase the Payment Amount for any reason, including a mutual agreement of the parties to increase ad spend. Such an increase will be effective as of the following invoice, unless otherwise agreed to in writing by the parties.
Recipient shall pay all invoices in the manner directed by Provider in writing. Recipient’s use of any third-party payment system, such as Stripe, is governed by the terms and conditions of such payment system, which terms and conditions are expressly incorporated herein by reference.
All fees payable by Recipient hereunder are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, or charges of any kind imposed by any governmental authority on such amounts. Recipient shall be solely responsible for the payment of any sales and use taxes assessed against the sale of Recipient’s goods or services.
Recipient shall pay interest on all late payments, calculated daily and compounded monthly, at the lesser of the rate of 5% per month or the highest rate permissible under applicable law.
3. TERMINATION
This Contract begins on the date Provider first begins providing Services to Recipient and ends when terminated pursuant to this Section (the “Term”). This Contract may be terminated by either party upon 60 business days prior written notice to the other party; provided, however, that Provider may terminate this Contract immediately upon Recipient’s failure to make payment when due under this Contract. If a termination under this provision would cause this Contract to terminate on a date other than the end of a regular invoice date (e.g., halfway through a contract month), Recipient shall pay a pro-rated amount of Provider’s retainer fee, together with all expenses actually incurred by Provider, for Services rendered during the last invoice period.
4. WORK PRODUCT OWNERSHIP
Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the "Work Product") developed in whole or in part by Provider in connection with the Services will be the exclusive property of Provider. To the extent Recipient becomes the owner, by operation of law or otherwise, of any such Work Product, Recipient shall and hereby does assign to Provider all right, title, and interest in and to such Work Product. Upon request, Recipient will execute all documents necessary to confirm or perfect the exclusive ownership of Provider to the Work Product.
5. DATA PRIVACY
Prior to Provider’s performance of any Services hereunder, Recipient shall notify Provider of any jurisdiction-specific data privacy laws that Provider may be required to comply with as a data processor of Recipient. Recipient represents and warrants that Recipient’s provision of, and Provider’s use of, any personally identifiable information provided by Recipient to Provider does not and will not violate any data privacy laws of any jurisdiction in which Provider performs services on behalf of Recipient. Provider will not be held liable for any security breaches that potentially or actually results in the exposure of Recipient’s data. Recipient expressly acknowledges that the use of any system involving the transmission of electronic data, including Provider’s services, involves some risk of cyberattack, and Recipient expressly assumes such risk. Recipient agrees that Provider may include, in any advertisement created by Provider for Recipient, a hyperlink to Provider’s privacy policy regarding the handling of any data processed by Provider on behalf of Recipient or Recipient’s customers.
6. CONFIDENTIALITY
Recipient, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Recipient, or divulge, disclose, or communicate in any manner, any information that is proprietary to Provider. Provider’s proprietary information includes, without limitation, provider’s scientific, trade, and engineering secrets; pricing; lead-generation techniques; know-how; algorithms; processes; inventions; source and object code; and experimental research. Recipient and its employees, agents, and representatives will protect such information and treat it as strictly confidential, using at least the same level of care that Recipient uses to protect its own confidential information. Any oral or written waiver by Provider of these confidentiality obligations which allows Recipient to disclose Provider's confidential information to a third party will be limited to a single occurrence tied to the specific information disclosed to the specific third party, and the confidentiality clause will continue to be in effect for all other occurrences. This provision will continue to be effective after the termination of this Contract. Upon the termination of this Contract, Recipient shall return (or, at Provider’s option, destroy) all of Provider’s proprietary information.
7. NO EXCLUSIVITY
Provider retains the right to perform the same or similar type of services for third parties in Recipient’s industry during the term of this Agreement.
8. RECIPIENT COOPERATION; LICENSES
Recipient shall: (a) provide copies of or access to Recipient’s information, documents, samples, products, or other material (collectively, “Recipient Materials”) as Provider may reasonably request to carry out the Services in a timely manner, and ensure that they are complete and accurate in all material respects; and (b) respond promptly to any Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Provider to perform the Services. Recipient and its licensors are and shall remain the sole and exclusive owner of all right, title, and interest in and to all Recipient Materials, including any and all trade secrets, trademarks, domain names, original works of authorship and related copyrights, and other intangible property; provided, however, that Recipient hereby grants to Provider a non-exclusive license to use such Recipient Materials solely in connection with providing services hereunder.
9. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN, PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO PROVIDER PURSUANT TO THIS AGREEMENT IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. FORCE MAJEURE
. If performance of this Contract or any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either party's reasonable control ("Force Majeure"), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
12. DISPUTE RESOLUTION
The parties will attempt to resolve any dispute arising out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation within 30 days, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure.
Any controversies or disputes arising out of or relating to this Agreement will be resolved by binding arbitration under the rules of the American Arbitration Association. The arbitrator's award will be final, and judgment may be entered upon it by any court having proper jurisdiction.
13. ENTIRE AGREEMENT
This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Contract. This Contract supersedes any prior written or oral agreements between the parties.
14. SEVERABILITY
If any provision of this Contract will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
15. GOVERNING LAW; VENUE
This Contract shall be construed in accordance with the laws of the State of Florida. Any action arising out of or relating to this Contract shall be brought in the state or federal courts located in Jacksonville, Florida, to whose jurisdiction each party irrevocably consents.
16. NOTICE
Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing, or by email: (i) in the case of notice to Provider, at [info@apex-seo.com]; or (ii) in the case of notice to Recipient, to it at the email address to which Provider regularly sends invoices.
17. WAIVER OF CONTRACTUAL RIGHT
The failure of either party to enforce any provision of this Contract shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Contract.
18. ATTORNEY'S FEES TO PREVAILING PARTY
In any action arising hereunder or any separate action pertaining to the validity of this Agreement, the prevailing party shall be awarded reasonable attorney's fees and costs, both in the trial court and on appeal.
19. CONSTRUCTION AND INTERPRETATION
The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort.
20. ASSIGNMENT
Neither party may assign or transfer this Contract without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld.
21. HOLD HARMLESS
You shall fully defend, indemnify, and hold harmless APEX SEO LLC from any and all claims, lawsuits, demands, causes of action, lability, loss, damage and/ or injury, of any kind whatsoever (including without limitation all claims for monetary loss, property damage, equitable relief, personal injury and/or wrongful death), whether brought by an individual or other entity, or imposed by a court of law or by administrative action of any federal, state, or local government body or agency, arising out of, in any way whatsoever, an acts, omissions, negligence, or willful misconduct on the part of you, its officers, owners, personnel, employees, agents, contractors, invitees, or volunteers. This indemnification applies to and includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys’ fees, and related costs or expenses, and any reimbursements to APEX SEO LLC.
22. RELATIONSHIP OF THE PARTIES
Nothing in this Contract creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Provider is an independent contractor pursuant to this Contract. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or other undertaking with any third party.
24. SERVICE RATE INCREASES
Beginning on the one-year anniversary of the date of the first invoice sent by Provider to Recipient, Provider may increase the amount of the retainer fee charged to Recipient under this Contract by up to 10% of the amount of the retainer fee. Provider may effect this increase once per each calendar year. This is separate from the Recipient increasing their ad spend, and thus the retainer that follows that as per the Providers pricing.
24. Auto Pay Clause
By electing to set up AutoPay, you authorize APEX SEO to automatically charge your credit card on a recurring basis no earlier than two days before your invoice due date until you terminate your authorization by official email to info@apex-seo.com two weeks before invoice due date. You authorize APEX SEO to store your payment method for future payments by you or your agent. The amount of each monthly recurring payment will be the full monthly price reflected on your invoice, plus any additional services, adspend passthrough charges, taxes, fees, and other charges applicable to the services APEX SEO provides to you. If you find a billing error and notify APEX SEO at least four days before your monthly invoice is due, we will attempt to correct the error before the next recurring payment. If you sign up for, cancel, or make changes to your AutoPay two days or less before the payment due date, the change may not take effect until the following payment cycle. Otherwise, we will automatically charge the amount reflected on your monthly invoice. After terminating your authorization, you will be responsible for scheduling payments for subsequent monthly charges. You also authorize APEX SEO to credit your card in the appropriate amount for any refunds or other billing adjustments.
APEX SEO WILL BEAR NO LIABILITY OR RESPONSIBILITY FOR ANY LOSSES OF ANY KIND THAT YOU MAY INCUR AS A RESULT OF AN ERRONEOUS STATEMENT, ANY DELAY IN THE ACTUAL DATE ON WHICH YOUR ACCOUNT IS CREDITED, OR YOUR FAILURE TO PROVIDE ACCURATE OR VALID PAYMENT INFORMATION.