OpenMoves, LLC. Marketing Services Terms and Conditions
1. Definitions. “Agreement” is the signed contract, agreement, change order, or other binding document that references these Terms and Conditions. “OpenMoves” means OpenMoves LLC, a New York corporation. “Client” means a party that has signed an Agreement with OpenMoves. OpenMoves and Client are sometimes individually referred to as a “Party’” and collectively as the “Parties.”
2. Independent Contractor. Client is engaging OpenMoves as an independent contractor for the specific project outlined in the Agreement. Neither OpenMoves nor any employees or independent contractors of OpenMoves who provide Services under the Agreement are “employees” of the client for any purpose.
3. No Warranty. OpenMoves does not warrant the number of sales per visitor that the Client will make or the level of traffic or number of visitors that will visit Client’s’ specified website. OpenMoves expressly disclaims and excludes all express and implied representations and warranties, whether statutory or otherwise. The Parties agree that, except as may be expressly provided in this Agreement, neither Party has made or makes to the other any representations or warranties respecting the compensation that the other may expect to earn or receive pursuant to this Agreement, or otherwise. Search engine optimization, pay-per-click advertising, email marketing and social media inherently runs risks of algorithmic changes or manual optimization actions by search engines. OpenMoves offers no guarantee or warranty of present or future placement, improvement or in any specific search engine, social media, or marketing platforms.
4. Limitation of Liability. OpenMoves’s liability for default or breach of the Agreement shall be limited to the amount actually paid to OpenMoves by Client under the Agreement. OpenMoves is not responsible for loss of income or projected loss of income for any reason, including, but not limited to, server failure, traffic variation, shipping cost variations, website unavailability, order decreases, search engine algorithm changes, manual optimization actions by search engines, keyword position decreases, data corruption, or data loss. Client is responsible for, and OpenMoves has no liability for, the content, products, services, trademarks, and other aspects of the website that are related to Client’s business, industry, and competitors.
5. Term; Termination. The initial term of the Agreement (the “Initial Term”) shall be the duration set forth in the proposal accepted by the Client. Following the Initial term, the Agreement shall continue unless and until either Party terminates the Agreement upon at least 30 days prior written notice.
6. Changes in Fees and Plans. To keep client services and OpenMoves digital strategies innovative in an ever increasingly competitive and ever-changing online marketplace, OpenMoves from time to time adjusts its services packages pricing, plan and package deliverables, software subscription fees, sub-product subscription fees, and its hourly rates. These changes will become effective after the Initial Term upon at least 30 daysior written notice to the Client. For clients who do not have a fixed service term, the effective date will be the first day of the following month after the Change in Fees has occurred and has become visible on the OpenMoves.com website.
7. Payment of Fees. Payments must be made promptly. Down payments are required to begin the project and payments of invoices for ongoing services are due upon receipt. If an amount remains delinquent 30 days after its due date, an additional 2% penalty will be added for each month of delinquency, or the maximum amount permitted by law, whichever is less. In the event OpenMoves incurs fees and expenses in connection with the collection of outstanding fees, the Client agrees to pay all fees incurred by OpenMoves including court costs and attorneys’ fees.
8. Venue. For any action involving matters of this Agreement, venue shall lie in Suffolk County, New York.
9. Applicable Law. This Agreement shall be governed by the laws of the State of New York.
10. Non-Solicitation. During the term of this Agreement and for a period of two (2) years after the Termination Date of all Agreements between the Parties, neither OpenMoves nor the Client will directly or indirectly employ or solicit for employment any person who is an employee or contractor of the other Party or any person who was an employee or contractor of the other Party at any time during the two (2) year period prior to the Client’s employing or soliciting such person. OpenMoves and Client acknowledge and agree that the breach of this Section by the other Party would cause irreparable injury.
11. Non-disparagement. During the term of this Agreement and for a period of two (2) years after the Termination Date of all Agreements with OpenMoves, Client agrees to take no action which is intended, or would reasonably be expected, to harm OpenMoves or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to OpenMoves.
12. Future Services. Future services performed for the Client as either hourly or quoted services will utilize all provisions of this Agreement unless a new Agreement is established.
13. Modification. OpenMoves may make changes to services, products, and these Terms and Conditions at any time without notice. Your access or continued use of OpenMoves’s services and products subsequent to such a change will signify your assent to be bound by such changes.
14. Assignment. Client may not assign its rights or delegate its obligations under the Agreement with OpenMoves without the prior written consent of OpenMoves.
15. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
16. Injunction. It is agreed that if Client violates the terms of the Agreement, including these Terms and Conditions, irreparable harm will occur, and money damages will be insufficient to compensate OpenMoves. Therefore, OpenMoves will be entitled to seek injunctive relief (i.e., a court order that requires Client to comply with any and all Agreements and these Terms and Conditions) to enforce the terms of the Agreement and these Terms and Conditions. The prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing all Agreements and Terms and Conditions.
17. Confidential Information. Except as is otherwise required or incidental to the performance of a Party’s obligations under the Agreement, the Confidential Information of a Party to the Agreement will not be copied, published, disclosed, used or made accessible by the other Party either during or after the termination of the Agreement, and absent a written agreement to the contrary, all of such Confidential Information will be and remain the sole and exclusive property of the Party which created such Confidential Information. As used in this Agreement, “Confidential Information” includes all confidential or proprietary information developed, obtained by or disclosed to a Party pursuant to the Agreement in connection with a Party’s services under the Agreement, including, but not limited to customer lists and databases, reports, sales information, trade secrets, patents, trademarks, trade names, secret processes, know-how, plans of business operations, inventions, improvements, data, formulae or any proprietary information whether now owned or hereafter developed or acquired.
18. Survivability. These Terms and Conditions, including, without limitation, Sections 9, 10, 11 and 17 of these Terms and Conditions, shall survive any termination of the Agreement.
19. No Waiver of Rights. If one Party breaches these Terms and Conditions, then the failure of the other Party to enforce any rights under these Terms and Conditions shall not be deemed a waiver of any such rights. The rights and remedies of the parties, as set forth in these Terms and Conditions, are not exclusive and are in addition to any other rights and remedies provided by law.
20. Authorization. By digitally signing Client’s signature to OpenMoves’s proposals or contracts or by agreeing to renewal or add new services. Client attests that it has read, understands, and agrees to the above Terms and Conditions.