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MERCHANTWORDS

Professional Services Agreement

Last Updated - August 20, 2018

The following terms and conditions set forth in this Professional Services Agreement (this "Agreement") govern the delivery of professional services provided by MerchantWords, LLC, a California limited liability company ("MerchantWords"), to the client set forth in the applicable Services Order ("Client") which is executed by and between the parties and references this Agreement.

  1. Licenses and Guildelines.
    By entering into a professional service order form, or other ordering document, web-based or email-based ordering mechanism or registration process (each a "Services Order"), MerchantWords shall provide the professional services (the "Services") as set forth in the applicable Services Order. The Services may include (a) configuration, implementation, training or other consultation related to a MerchantWords product or service that Client has received rights to use under a separate agreement, and/or (b) strategic, advisory, and/or other professional services related to e-commerce platform optimization. Each Services Order shall be governed by this Agreement.
  2. Payment for Services.
    1. Services fees are invoiced in full upon MerchantWord's receipt of a Services Order, with payment due and payable by Client to Merchant Words within thirty (30) days of Client's receipt of such invoice, except as otherwise specified on the applicable Services Order. The fees specified in the Services Order are the total fees and charges for the Services and shall not be increased during the term of the Services Order, except as the parties may agree in writing. Client shall pay MerchantWords the fees set forth in each Services Order in accordance with the terms set forth therein. All payments shall be made in U.S. dollars. Any payments more than thirty (30) days overdue shall bear a late payment fee of one and one-half percent (1.5%) per month, or, if lower, the maximum rate allowed by law. In addition, Client shall, except for tax on MerchantWord's property or net income, if any, imposed by taxation authorities on amounts payable to MerchantWords hereunder, pay all national, federal, state, local or other taxes and assessments of any jurisdiction, including but not limited to sales or use taxes, value-added taxes, duties, customs or other import or export taxes or duties, other governmental assessments, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, federal, state, local or other taxing jurisdiction., as well as all pre-approved out of pocket expenses incurred by MerchantWords in connection with any Services Order. If Client is paying any fees by credit card, Client shall provide MerchantWords complete and accurate information regarding the applicable credit card. Client represents and warrants that all such information is correct and that Client is authorized to use such credit card. Client shall promptly update its account information with any changes (for example, a change in billing address or credit card expiration date) that may occur. Client hereby authorizes MerchantWords to bill such credit card in advance on a periodic basis in accordance with the terms of these TOS and each Order, and Client further agrees to pay any charges so incurred. If any change affects the time or cost of performance under the applicable Services Order, an adjustment in the time and/or compensation to be paid thereunder shall be agreed to in writing by the parties before such modification shall be effective.
    2. CLIENT UNDERSTANDS AND AGREES THAT PAYMENTS ARE NONREFUNDABLE. MERCHANTWORDS IS NOT OBLIGATED, AND CLIENT IS NOT ENTITLED AND HEREBY WAIVES ANY RIGHT, TO ANY CREDIT, REFUND, PRICE ADJUSTMENT OR ANY OTHER DISCOUNT, COMPENSATION OR RECOMPENSE FOR ANY PARTIALLY USED OR UNUSED SERVICES. Refunds are only issued if required by law. Notwithstanding the forgoing, although not required or obligated, MerchantWords reserves the right to evaluate or elect to provide credits, refunds, price adjustments or other discounts, compensation or recompense, from time to time, and at any time, in MerchantWords's sole and absolute discretion; provided that any such elections to offer any such credits, refund, price adjustment or other discount, compensation or recompense in one instance does not entitle Client to the same or any such benefit in the future for similar or unrelated instances, nor does it create any obligation whatsoever for MerchantWords to offer such benefit to Client or any other user in connection with any past, present, or future request under any circumstance whatsoever.
  3. Term and Termination.
    The terms and conditions of this Agreement shall remain in effect from the effective date specified in the applicable Services Order through the completion of the Services set forth in the Services Order. Each Services Order, with respect to the Services, shall become effective on the effective date specified in the applicable Services Order ("Services Effective Date") and shall expire on the date that Services are completed thereunder ("Services Completion Date"). Either party may terminate the Services Order upon written notice given to the other party, if the other party materially breaches the Services Order and fails to cure such breach within thirty (30) days following receipt of notice describing the breach. Upon termination by Client for MerchantWords's material breach, Client shall be liable only for payment for the Services rendered through the termination date, and shall receive from MerchantWords a pro-rata refund of any unused, prepaid fees for Services.
  4. Provision of Services.
    MerchantWords shall perform Services based on a schedule mutually agreed to by the parties in writing. Services shall expire, unless the Services are scheduled and delivered within twelve (12) months from the date they were ordered. Services shall be performed by a MerchantWords representative or other authorized representative of MerchantWords. Client agrees, however, that MerchantWords, in its sole discretion, may provide the Services through a third-party representative.
  5. Access.
    Client shall provide MerchantWords with access to data, materials, software and hardware as reasonably required for MerchantWords to perform the Services ("Client Materials"). Client hereby grants MerchantWords a limited right to use such Client Materials solely for the purpose of performing Services hereunder. Client represents and warrants that it has all rights necessary in the Client Materials to provide them to MerchantWords for such purpose. Client shall provide MerchantWords with safe access to Client's premises as reasonably required for MerchantWords to perform the Services, if onsite performance of Services is needed and agreed to by Client. MerchantWords personnel shall comply with the reasonable written rules and regulations of Client related to use of its premises, provided that such written rules and regulations are provided to MerchantWords prior to commencement of the Services. MerchantWords shall not be responsible for failures or delays in performing Services due to Client's failure or delay to provide access to Client Materials or Client premises or due to Client-imposed or government-imposed security requirements.
  6. Third-Party Platforms and Data.
    For certain Services, the Client may provide MerchantWords with access to certain data and materials ("Third-Party Data") accessed through Clients' accounts ("Third-Party Accounts") with third party application platforms through which Client offers its Site (hereinafter defined) to end users ("Third-Party Platforms"). "Site" means those websites, Third-Party Platforms, applications or devices owned or controlled by Client or a third party for which Client wishes to, and has the authority to, use the MerchantWords keyword tool (or other MerchantWords software or software as a service products ("MerchantWords Products"), MerchantWords APIs, third party APIs, or any other methods to collect or upload data in connection with the Services. To provide the Services, MerchantWords will need rights to access, upload and view the Third-Party Data by using Client's credentials to access Third-Party Accounts. Client acknowledges and agrees that Services related to any Third-Party Data or Third-Party Platforms are conditioned and dependent upon the applicable Third-Party Platform allowing MerchantWords access to Client's Third-Party Account and Third-Party Data by MerchantWords, as a service provider of Client. Client shall provide MerchantWords with timely and appropriate access to its Third-Party Account credentials and password ("Third-Party Account Information") to enable MerchantWords to access Client's account on Third-Party Platforms. Client acknowledges and agrees that MerchantWords's provision of the Services related to any Third-Party Data is conditioned upon MerchantWords's receipt of correct and accurate Third-Party Account information from Client, and to the continuing practices, policies, APIs and/or terms of use of applicable Third-Party Platform providers making data available in the format necessary to retrieve through the Services free of charge or restrictions. MerchantWords is not responsible for any changes or dysfunction of the results of the Services, including, without limitation, any data (or loss or corruption thereof) contained on the Third-Party Platform, arising from any changes to practices, policies, APIs or terms of use of the Third-Party Platform providers. Client hereby grants MerchantWords the right to, for the sole purpose of providing Services, if such right is necessary to provide the Services as described in the Services Order: (a) access Client's Third-Party Accounts, (b) access and retrieve Third-Party Data from the Third-Party Platforms via Client's Third-Party Accounts, (c) collect, store, use, distribute, copy, modify and process any Third-Party Data accessed via its Third-Party Account solely to provide the Services' and (d) take such action with respect to Client's Third-Party Accounts as appropriate in order to provide the Services. Client shall ensure that the optimization, collection, uploading, transmission, processing and storage of Third-Party Data and any other data provided by Client in connection with Client's use of the Services at all times comply with (i) Client's own policies regarding privacy and protection of user information, (ii) all applicable third-party terms and privacy policies, including all applicable Third-Party Platform terms, and (iii) all applicable laws, rules and regulations, including those related to optimization, processing, storage, use, reuse, disclosure, security, protection and handling of Third-Party Data. Unless a Site is designed and provided by MerchantWords as a part of the Services, Client hereby acknowledges that MerchantWords is not responsible for the development, maintenance, and operation of any Site, nor for any content or other materials that appear on, and is otherwise accessible by visitors to, any Site, nor is MerchantWords responsible for order entry, payment processing, shipping, cancellations, returns, or customer service concerning orders placed on any Site. Client further warrants that it shall not add to or place upon its site any MerchantWords owned or licensed content, including but not limited to any MerchantWords search listings, except as otherwise may be permitted by MerchantWords pursuant to a separate agreement by and between MerchantWords and Client authorizing such usage of MerchantWords owned or licensed content.
  7. Intellectual Property Rights.
    Client has and shall retain sole and exclusive right, title and interest in and to all Client Confidential Information, Client Materials, Third-Party Data, and Third-Party Account Information (collectively, "Client Property"), including any and all intellectual property rights therein. MerchantWords has and shall retain sole and exclusive right, title and interest in and to all MerchantWords Confidential Information, MerchantWords products, MerchantWords service, and all MerchantWords technology, platforms, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing, including any and all intellectual property rights therein, (collectively, "MerchantWords Property"). However, MerchantWords' ownership rights do not extend to Client Property embedded or incorporated in the foregoing items.

    Unless expressly stated otherwise in a Services Order, MerchantWords shall retain all right, title and interest in and to all deliverables, work product, designs, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing resulting from or used in providing the Services, including any and all intellectual property rights therein, but excluding all Client Property, ("Configuration Services Results"). Upon full and final payment of all fees and expenses owing to MerchantWords under the applicable Services Order, MerchantWords hereby grants to Client the same rights to use the Configuration Services Results as the rights granted to Client under the MerchantWords agreement with respect to the MerchantWords Products; provided that, as a condition precedent to the grant of such rights, Client shall have agreed in writing to be bound by the terms of service with respect to such MerchantWords Products. Unless expressly stated otherwise in the applicable Services Order, MerchantWords shall retain all right, title and interest in and to all deliverables, work product, designs, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing resulting from or used in providing the Services, including all intellectual property rights therein, but excluding all Client Property (the "eCommerce Optimization Services"). Client hereby agrees that Client shall not use the Services to create any product or services that are competitive to any MerchantWords Products or Services.
  8. Exclusion of Warranties.
    THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND, AND MERCHANTWORDS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. CLIENT ACKNOWLEDGES THAT MERCHANTWORDS DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE SERVICES, AND ANY INFORMATION, ADVICE OR SERVICES OBTAINED BY CLIENT FROM MERCHANTWORDS SHALL NOT CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

    NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NONE OF MERCHANTWORDS' REPRESENTATIONS, WARRANTIES OR OBLIGATIONS UNDER THIS AGREEMENT SHALL APPLY WITH RESPECT TO THIRD-PARTY DATA OR THIRD-PARTY PLATFORMS. MERCHANTWORDS MAKES NO WARRANTIES OR REPRESENTATIONS AND SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD-PARTY DATA, INCLUDING THE ACCURACY OR LEGALITY OF ANY THIRD-PARTY DATA. ALL SERVICES WITH RESPECT TO THIRD-PARTY PLATFORMS AND THIRD-PARTY DATA ARE PROVIDED "AS IS" AND "AS AVAILABLE", AND MAY BE DISCONTINUED AT ANY TIME BY MERCHANTWORDS.
  9. Limitation of Liability.
    NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER ARISING OUT OF THIS AGREEMENT FOR THE SERVICES PERFORMED HEREUNDER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO MERCHANTWORDS UNDER THE APPLICABLE SERVICES ORDER. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR DATA) WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 10 SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

    MerchantWords is willing to enter into this Agreement and the Services Order and perform Services for Client only in consideration of and in reliance upon the provisions of this Agreement limiting MerchantWords's exposure to liability, including, but not limited, to the provisions contained above. Such provisions constitute an essential part of the bargain underlying this Agreement and the Services Order and have been reflected in the consideration specified therein.
  10. Confidentiality.
    1. Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as code, inventions, know how, business and marketing plans, technology and technical information, financial information, product plans and designs, and business processes disclosed by such party. Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to or reliance on the Disclosing Party's Confidential Information, as demonstrated by documents or files in existence at the time of the confidential disclosure.
    2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less restrictive than those herein. Neither party shall disclose the terms of any Order Form to any third party other than its legal counsel and accountants without the other party's prior written consent, provided that a party that makes any such disclosure to its legal counsel or accountants shall remain responsible for such legal counsel's or accountant's compliance with this Section 11(b).
    3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. In the event that such protective order or other remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information that is legally required and use commercially reasonable efforts to obtain assurance that confidential treatment shall be accorded the Confidential Information.
  11. Miscellaneous.
    1. Assignment. Neither party may assign or delegate its rights and obligations under this Agreement and any Services Order to any third party without the prior consent of the other party to this Agreement (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that either party may assign and transfer these this Agreement and any Services Order without consent to a successor to all or substantially all of its assets or business; any attempt to assign in violation of the foregoing shall be void. There are no third-party beneficiaries under these this Agreement and any Services Order.
    2. Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
    3. Waivers. No failure or delay in exercising any right hereunder shall operate as a waiver thereof, nor shall any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
    4. Governing Law; Venue; Attorney's Fees. This Agreement and each Services Order shall be governed by and construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any proceeding relating to this Agreement and each Services Order or the subject matter hereof shall be brought only in federal or state court in the County of Los Angeles, California, and each party hereby generally and unconditionally submits to and accepts the jurisdiction of such courts. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph. The prevailing party in any action to enforce this Agreement and each Services Order shall be entitled to recover its attorney's fees and costs in connection with such action, in addition to any other relief the prevailing party shall be entitled.
    5. Services Provided and Data Processed in the United States. The Services are controlled and offered by MerchantWords from its facilities in the United States. If Client chooses to utilize the Services from outside the United States, then Client acknowledges that Client is transferring Client Data and Third-Party Data into the United States for storage and processing and that Client is responsible for compliance with all local laws applicable to such transfer, storage and processing.
    6. Entire Agreement. This Agreement, together with all applicable Services Order executed by the parties constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
    7. Force Majeure. Except for the payment obligations hereunder, non-performance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, government acts or orders or restrictions, failure of supplier, or any other reason where failure to perform is beyond the reasonable control of and not caused by the negligence of the non-performing party.
    8. 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, 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 an indemnifiable claim). Billing-related notices to Client shall be addressed to the relevant billing contact designated by Client on the applicable Services Order. All other notices to Client shall be addressed to the relevant contact designated by Client on the applicable Services Order. All notices to MerchantWords shall be sent to MerchantWords to the applicable MerchantWords contact at the address set forth on the applicable Service Order.

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