What’s in your fine print? Here’s mine.
OK……I’m not a lawyer….but I was just reviewing the "fine print" of my contracts and was wondering what you guys thought about it. Anything you think I should add or subtract?
Additional Standard Contract Terms
1. Additional Services - Any revisions, additions or redesign client wishes Find Your Dreams, Inc. to perform not specified in this document shall be considered "additional" and will be billed separately for the particular service.
2. Copyrights and Trademarks - The client represents to Find Your Dreams, Inc. and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Find Your Dreams, Inc. for inclusion in Web pages 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, and defend Find Your Dreams, Inc. and its subcontractors from any claim or suit arising from the use of such elements furnished by the client. All information, text, graphics, are owned by the client exclusively. The client owns and is responsible for their site in it’s entirety.
3. Limited Liability - Client hereby agrees to indemnify and hold harmless Find Your Dreams, Inc. in any claim resulting from clients site(s), products, or services. Under no circumstances, including negligence, shall Find Your Dreams, Inc., its offices, agents or anyone else involved in creating, producing, marketing, or distributing it’s services, be liable for any direct, indirect, incidental, special or consequential damages that result from any technique used to drive relevant traffic to your site.
4. Find Your Dreams shall not be held liable for: omissions, interruptions, deletion or loss of files or data, errors, defects, delays in operation, rankings, sales, or performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to Find Your Dreams, Inc.’ records, programs, acts of Search Engines or act of Directories, or other places on the web which may or may not link to your site(s). Notwithstanding the above, Client’s exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate dollar amount which Client paid during the term of this Agreement (minus any third parties fees for inclusions or links) and any reasonable attorney’s fee and court costs.
5. Indemnification - Client agrees that it shall defend, indemnify, save and hold Find Your Dreams, Inc. harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees, ("Liabilities") asserted against Find Your Dreams, Inc., agents, its clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sole by Client, its agents, employee or assigns.
6. Client agrees to defend, indemnify and hold harmless Find Your Dreams, Inc. against Liabilities arising out of any injury to person or property caused by any products or services sold or otherwise distributed in connection with Find Your Dreams, Inc.’ service, any material supplied by Client infringing on the proprietary rights of a third party, copyright infringement, and any defective product, or unsafe product.
Search engine optimization inherently runs risks of algorithmic changes of search engines. Find Your Dreams, Inc. offers no guarantee of present or future placement in any specific search engine. Client assumes all risks and responsibility.
7. Laws Affecting Electronic Commerce - The client agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Find Your Dreams, Inc. and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the client’s use of Internet electronic commerce. Ecommerce is not the responsibility of Find Your Dreams.
8. Confidentiality: Excluded from the “Confidential Information” definition is anything that can be seen by the public on the Web Site when each page of the Web Site is first accessed. Clients and FYD acknowledge and agree that the Specifications and all other documents and information related to the marketing of the Web Site (the “Confidential Information”) will constitute valuable trade secrets of Internet Marketing and Optimization, or of clients respected line of business.
Customer shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without Internet Marketers’ prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information. Mutually, the FYD shall not discuss confidential information, such as pricing, costs, nor sales, with any other person.
9. Use of Web Site for Promotional Purposes - Customer grants Find Your Dreams, Inc. the right to use the clients Web Site for promotional purposes and/or to cross-link it with other Web Sites, and to offer one-way links out that may or may not reciprocate back.
10. Find Your Dreams, Inc. is not responsible for any costs associated with downtime, inventory, sales, nor for changes in any search engine or directory. FYD shall also not be responsible for any other loss that may occur in the operation of the Web Site.
11. Cancellation - In the event that Work is postponed or canceled at the request of the Client by email, Find Your Dreams, Inc. shall have the right to bill pro rata for work and links completed through the date of that request. If additional payment is due, this shall be payable within thirty days of the Client’s notification to stop work.
12. Refund Policy - A Refund will only take place for "Future" months that were paid in advance.
At anytime you wish a refund, we will need 30 days to take your campaign down. Therefore, any month you cancel, you will be billed for the following month also and any amount owed will be paid back to client.
13. Arbitration - Any disputes in excess of $1,000 (or the maximum limit for small claims court) arising out of this Agreement shall be submitted to binding arbitration before the Joint Ethics Committee or a mutually agreed upon Arbitrator pursuant to the rules of the American Arbitration Association. The Arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof. The Client shall pay all arbitration and court costs, reasonable attorney’s fees and legal interest on any award or judgment in favor of Find Your Dreams, Inc.
14. Payment of Fees - In order for Find Your Dreams, Inc. to remain in business, payments must be made promptly. Invoices are due upon receipt. Delinquent bills will be assessed a $50 charge if payment is not received within 20 days of the due date. If an amount remains delinquent 30 days after its due date, an additional $100 penalty will be added for each month of delinquency. Find Your Dreams, Inc. reserves the right to remove all marketing campaigns, and links to your site that we obtained if payment is more than 30 days overdue.
15. Jurisdiction - This contract constitutes the sole agreement between Find Your Dreams, Inc. and the Client regarding its web site marketing. It becomes effective only when signed by both parties. This agreement shall be governed and construed in accordance with the laws of Saratoga County, of the State of New York, USA.
Find Your Dreams, Inc. will market these pages for an amount mentioned within this contract.
This form constitutes a contract only when signed by both parties.
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May 25th, 2006 at 1:03 am
This is something i think should be subtracted
“9. Use of Web Site for Promotional Purposes - Customer grants Find Your Dreams, Inc. the right to use the clients Web Site for promotional purposes and/or to cross-link it with other Web Sites, and to offer one-way links out that may or may not reciprocate back.”
May 25th, 2006 at 1:04 am
or maybe it needs more exlaination
May 25th, 2006 at 4:31 am
The jurisdiction section, the “protect and defend” language, the “signed by both parties” language, and perhaps the arbitration section should all be rewritten or rethought by an attorney. I suspect they were not written or reviewed by an attorney, but if they were, fire them.
Warning: I am not an attorney, just a law school graduate … and as such this is not (and is not intended) to be a legal opinion. Just friendly advice that there look to be serious deficiencies that a lawyer would rip apart if you were ever in court (or legal points you are not taking advantage of).
May 25th, 2006 at 4:38 am
“Delinquent bills will be assessed a $50 charge if payment is not received within 20 days of the due date. If an amount remains delinquent 30 days after its due date, an additional $100 penalty will be added for each month of delinquency”
Not exactly on-topic but is this the standard for the US? For UK clients the law states you can charge 7% of the invoice if payment is not made within 30 days. Our problem here is that we deal with clients internationally now and I’m trying to write terms which better apply to them all (or at least have individual country contracts if that is not possible).
We get a few Chinese clients, which I think would be the hardest to deal with on a contractual level but luckily they have all been extremely prompt payers to date.
May 25th, 2006 at 6:26 pm
It seems a bit one sided.
Both parties may exchange confidential information. Non disclosure should go both ways.
Is this a “Work for hire” agreement (as defined in the Copyright Act, as amended, 17 U.S.C.A. § 101 et seq.) and owned exclusively by the Client where you immediately, unconditionally and irrevocably transfer and assign to the client all right, title, and interest in and to such Work, including, without limitation, all copyrights and other intellectual property rights to the work when final payment clears?
Do you agree to provide Client original, custom work for the project?
Do you represent and warrant to the Client: (i) that the Work will be original to you and will not have been published previously or used in any medium for any purpose; (ii) that the Work will not infringe or violate any right of any third party; (iii) that your performance under this agreement and the rights you grant under this agreement will not conflict with or violate any agreement or understanding that you have or will have with any third party; and (iv) that the Work will not contain any libelous or unlawful material, or any material that could expose the Client to liability.
Does the client have the exclusive right to reproduce, edit, adapt, modify, perform, transmit, and otherwise use the Work, including any derivative works created therefrom, in any manner or medium throughout the world as well as reproduce and distribute the Work on printed materials, electronic or optical media, CD-ROM, the Internet, the World Wide Web, or in any other media now known or hereafter developed?
Do you agree to indemnify, defend and hold the Client harmless from any and all losses, damages, and/or expenses (including reasonable attorneys’ fees) that the Client may suffer or incur by reason of any claim arising out of or related to your breach or alleged breach of the terms of the agreement?
Do you further agree to cooperate fully in the defense of any legal action that might arise from the creation or publication of the Work?
Are you solely responsible for the payment of any federal, state, and/or local income, social security, and/or self-employment taxes, as well as for the payment of any necessary insurance, including worker’s compensation insurance, with respect to the services and Work furnished under this agreement?
Do you further agree that this agreement does not constitute an employment contract or an offer of employment?
Do you acknowledge that under no circumstances will you be included in any employee benefit plan of the Client and you hereby waive any right to be so included?
Just wondering…
Aloha,
Dave.
May 27th, 2006 at 2:40 pm
I really need some of these “words” - whilst I am a small SEO service I do wish I could come up with a better “agreement” for my business.
Anyone have the perfect one page agreement????
I particularly like to offer no guarantee….
David
June 2nd, 2006 at 8:07 pm
“No Guarantee” is not the fine print–I like to keep that up on the top of the front page in 18pt font.
I’ve found that most of the “templates” out there for SEO Consulting really don’t fit for me (kind way of saying they suck). I’ve found the most success just making sure the terms are solid, and then appending a brief but custom Work Plan, with “roles/responsibilities”, “timetable” & “authorization” sections that clarify duties & expectations.
June 11th, 2006 at 1:35 am
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