Strategic Marketing, Inc.
1585 SW Marlow Ave. Suite 101
Portland, OR 97225
YOUR USE OF OUR SERVICES INDICATES YOUR INTENT TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS OF USE ("THE AGREEMENT") GOVERNING YOUR USE OF THE SERVICE PROVIDED BY STRATEGIC MARKETING, INC. ("STRATEGIC MARKETING").
The following Terms and Conditions constitute a legally binding agreement (the "Agreement") between you ("You" or the "Client") and Strategic Marketing, Inc. ("SMI" or "We") regarding services rendered or to be rendered by SMI.
Strategic Marketing, Inc. will provide you with use of Search Engine Marketing ("SEM"), Pay-Per-Click ("PPC") Management, Online Marketing, Social Media Marketing, Search Engine Optimization ("SEO"), Custom Websites, Do It Yourself ("DIY") Websites, Website Hosting or Featured Property Placement ("FPP") services (collectively, "Services" or generically,"Service"). Your use of such Services shall be deemed to be your agreement to abide by this Agreement, including any materials available on the Strategic Marketing website (www.strategicmarketinginc.com), including but not limited to Strategic Marketing's privacy and security policies.
Search Engine Marketing ("SEM") and Pay-Per-Click ("PPC") Management. If you have purchased SEM and/or PPC Services, Strategic Marketing will position your designated website(s) among the Sponsor Results on the Search Engine(s) and/or Search Engine Network(s) you selected within 10 business days of opening your account contingent upon your designated website(s) passing the Quality Standards Review(s) imposed by the selected Search Engine(s) such as Google, Bing and/or Yahoo. Those reviews consider, but are not limited to: Relevancy; Popularity; Content; Pop Ups; Local Relevance. Search engine placement selections involve keyword searches, and such searches are subject to availability and Strategic Marketing's approval. Further, you understand that the availability of search terms and website placement are affected by market conditions and as a result may change from time to time. In the event the costs incurred by Strategic Marketing to maintain your current position increases substantially, Strategic Marketing shall offer you the option of: continuing placement at the increased fees or choosing another position for which the fees are substantially the same as the fees you are paying at the time of increase. In the event fees for maintaining your current position substantially decrease, Strategic Marketing will offer you the option of choosing another keyword search for which the SEM/PPC Service fees seem to offer better value at substantially the same fees you are paying. Changes in SEM/PPC Service fees shall appear during the billing cycle immediately following the cycle in which the fees change. You understand and agree that the Quality Standards Review(s) and alliances between independent search engines and the Yahoo! Search Network, Bing and Google search engines are not under Strategic Marketing's control. All Search Engine Marketing and Pay-Per-Click Management Services do not guarantee advertising position, ranking, placement, clicks, traffic, conversions or sales. Strategic Marketing, Inc. will maintain your ads to remain online until your monthly budget has been exhausted.
Online Marketing and Social Media Marketing. If you have signed up for any other form of online marketing or social media marketing and/or management, Strategic Marketing will either use your profile page (Facebook, Google+, Twitter) or website to advertise on the advertising section of each platform you have agreed to use (Facebook, Google AdWords Express, Twitter). If you have signed up for custom design or management solutions, you will be notified in writing (via Email) about the services you have signed up for. All Online Marketing and Social Media Marketing Services do not guarantee advertising position, ranking, placement, clicks, traffic, conversions or sales. Strategic Marketing, Inc. will maintain your ads to remain online until your monthly budget has been exhausted.
Search Engine Optimization ("SEO"). If you have signed up for search engine optimization ("seo") services, Strategic Marketing will consult with you on specific tasks that will be provided on a per project basis. Strategic Marketing does not guarantee higher/lower ranking or positions of any kind for any keyword or search phrase on any search engine. You agree and accept that Strategic Marketing has no control on how or when your website will appear on any search engine after work is completed and cannot predict the outcome for any project. Turnaround time on completing tasks will depend on consultation, project details and information needed from client. Information requested to client includes but is not limited to: Website Login Credentials; Account Login Credentials; (File Transfer Protocol) FTP Access; Reviews and Approvals; Payment(s).
Do It Yourself ("DIY") Website Services. If you have purchased DIY Website Services, you will be provided with a selection of website templates and tools from which you can create a semi-custom website for your company which Strategic Marketing will host. Strategic Marketing will enable you to add and edit your own content.
Custom Website Services. If you purchased Custom Website Services, you will be responsible for your own website hosting, email hosting and domain name ownership, unless an agreement is made where Strategic Marketing will provide that for you. If Strategic Marketing owns your domain name, you will need to purchase it and legally transfer it to your domain name registrar account. Content such as text and photos should be supplied and must be original or legally authorized to be used. Strategic Marketing, Inc. will not be held liable for any copyright issues. Consulting fees may also apply to any additional type of project management such as market research, company auditing, business plan, marketing plan and/or website related work (logo design, image/video editing, content revisions, etc.)
Website Hosting Services. If you have signed up for website hosting, you will be given access to your files upon request. FTP (File Transfer Protocol) access. If Strategic Marketing provides FTP access, client will be responsible for their login information and should carefully store login information in a secured location and not provide access to unauthorized users. We will not be held responsible for unauthorized use of FTP access. It is the client's responsibility to make or schedule backups for their website. Strategic Marketing reserves the right to terminate any website hosting agreement if we feel your website(s) is involved with any illegal or non-acceptable activity (i.e. hacking, malware, distribution, copyright infringement, etc.). If this does happen, SMI will notify and inform you when the website will be taken down. Websites removed from illegal or non-acceptable activity are non-refundable.
Featured Property Placement ("FPP") Services. If you have purchased FPP Services, you will be provided with a selection of website templates and tools which will allow you to showcase your property listings, position and rotate listings and customize your photo gallery of listings with instant editing.
2. Privacy & Security; Disclosure.
You may view Strategic Marketing's privacy and security policies (collectively, "Policies") at http://www.strategicmarketinginc.com/support/terms. Strategic Marketing reserves the right to modify the Policies in its reasonable discretion from time to time. You are responsible for knowing the current Policies, and your continued use of the Services indicates your agreement to the Policies as they may be modified or revised. Strategic Marketing occasionally may need to notify all Services users of important announcements regarding Service operation. You agree that Strategic Marketing may disclose the fact that you are a user and the Service you are using.
3. Service Fees.
Set-up Fees. You agree to pay a nonrefundable account set-up fee for each Service you purchase.
Monthly Fees. You agree to pay the Monthly Service Fee each month on the same date you opened your account. The Monthly Service Fee is due in advance of the delivery of Services. For example, if you opened your account on March 15, your Monthly Service Fee will be due on the 15th of each month thereafter until your account is terminated; the Monthly Service Fee for Services delivered from April 15 to May 14 would be due on April 15. Your monthly fees are not refundable if your account is active or terminated, regardless of the reason.
4. License Grant & Restrictions.
In exchange for your access to and use of the Service and the fees you pay for such access and use, Strategic Marketing hereby grants you a nonexclusive, nontransferable, limited right to access and use the Service, subject to the terms and conditions of this Agreement. Your license shall be solely for your internal business. You confirm that all persons accessing the Service under your password or on your behalf have your authority to do so, and you assume total and complete responsibility for their compliance with this Agreement. Strategic Marketing reserves all rights not expressly granted to you.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (ii) modify or make derivative works based upon the Service; (iii) create Internet "links" to the Strategic Marketing, Inc. website, except as authorized in writing by Strategic Marketing, or to "frame" or "mirror" any material or content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual but may be reassigned from time to time when new Users replace former Users who have terminated employment or the business relationship or otherwise changed the job status or function and no longer use the Service.
Strategic Marketing reserves the right to audit you, at Strategic Marketing's expense, to ensure compliance. However, in the event the audit in Strategic Marketing's reasonable determination indicates noncompliance, you agree to bear all reasonable costs associated with the audit, including Strategic Marketing's time, billed at Strategic Marketing's then-current consulting rates.
You shall not: (i) send SPAM or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortuous material, including material harmful to children or that violates third-party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer codes, files, scripts, agents or programs; (iv) interfere with or disrupt the Service's integrity or performance or that of the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related system or network. Violation of your security obligations and/or the breach of any system or network security may result in civil or criminal liability. Strategic Marketing may investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations.
5. User Content.
One or more of the Services may include the means by which you can transmit, add or upload data, material, information or other content or materials ("User Content"). You agree not to use the Service for: (a) any activity that is unlawful (whether criminal or tortuous) under the laws of any jurisdiction to which you or Strategic Marketing is subject; (b) any activity that promotes others to act unlawfully; (c) any activity that constitutes competition with the Service; (d) uploading, submitting or otherwise making available material that infringes another's copyright, trademark or other intellectual property rights; or (e) uploading, submitting or otherwise making available threatening, defamatory or obscene comments, proprietary, confidential or insider information, obscene or pornographic material, or falsified and/or misleading information ("Objectionable Content").
Strategic Marketing has no obligation to monitor User Content. However, Strategic Marketing has the right to perform such monitoring, and the right (but not the obligation) to reject, withhold, remove and/or discard User Content without notice for any breach, including without limitation, your nonpayment. Upon termination, your right to access or use User Content immediately ceases, and Strategic Marketing shall have no obligation to maintain or forward any User Content.
Strategic Marketing does not own any User Content. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all User Content. Strategic Marketing shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Content.
6. Your Responsibilities.
You agree that you will use the Service only for lawful purposes within the stated context of Strategic Marketing's intended and acceptable use of the Service, which shall be interpreted solely by Strategic Marketing. You agree that you are responsible for all activity occurring under your account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) immediately notify Strategic Marketing of any unauthorized use of any password or account or any other known or suspected security breach; (ii) immediately report to Strategic Marketing and use reasonable efforts to stop immediately any copying or distribution of Content that you know or suspect; and (iii) not impersonate another User or provide false identity information in order to gain access to or use the Service.
7. Strategic Marketing Responsibilities.
Strategic Marketing Responsibilities. (i) Strategic Marketing has up to and including 10 business days from the date you sign up for SEP Services to produce the Services ordered. (ii) Strategic Marketing has up to and including 15 business days from the date you sign up for SST Services to produce the Services ordered.
8. Intellectual Property Ownership.
Strategic Marketing (and its licensors, where applicable) solely owns all rights, title and interest, including all related intellectual property rights, in and to the Services and related Strategic Marketing-provided Content ("Service Content"), and any suggestions, ideas, enhancements, requests, feedback, recommendations or other comments or information relating to the Service provided by you or any other party. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Service Content or intellectual property owned by Strategic Marketing.
9. No Endorsement of Linked Sites.
Strategic Marketing does not endorse any websites linked through the Services or its website, and provides these links only for convenience. In no event shall Strategic Marketing be responsible for any content, products or other materials on or available from such linked sites.
10. Terms, Pausing and Termination.
Month-to-Month Agreement: This is a month-to-month agreement, which shall automatically renew unless paused or terminated.
Pausing: Strategic Marketing, Inc. allows you to "pause" your account. This option requires a 10% "pause fee" based off your current monthly spend. This fee will be billed on your cycle date on a month-to-month basis. Once your account is re-activated after your approval, the "pause-fee" funds will be credited to your next month of advertising. If you decide to not re-activate your account during your pause period, any fees that have been paid are non-refundable.
For Cause: Strategic Marketing, in its sole discretion, may disable your password and/or terminate your account or use of the Services at any time and without notice if Strategic Marketing in good faith believes you have breached this Agreement. You acknowledge and agree that Strategic Marketing has no obligation to retain the Customer Content and may delete such Customer Content if Strategic Marketing terminates your account for breach and such breach is not cured within 30 days of such breach.
Website Reinstatement Fee: You shall pay a $50.00 Reinstatement Fee if your website account is re-activated after being terminated for whatever reason. In addition, you must pay all past-due Monthly Service Fees before your account will be re-activated. Strategic Marketing further reserves the right to require the prepayment of Monthly Services Fees in any amount that Strategic Marketing, in its sole discretion, deems sufficient as to reduce the risk of future nonpayment and/or any other breach.
11. Representations and Warranties.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Strategic Marketing represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Services will perform substantially in accordance with Strategic Marketing's claims. You represent and warrant that you have not falsely identified yourself nor provided any false information in order to gain access to the Services. You represent and warrant that your access to the Services shall not violate any contract, statute, rule, regulation or other obligation under which you are bound. You represent and warrant that you shall not access the Services to conduct or solicit the performance of any business or activity that is tortuous or prohibited by law.
12. Intellectual Property/Use of Services.
1. All work, product and services generated by Strategic Marketing Inc, and/or its affiliates, including, but not limited to Google Ads, Yahoo!, Bing and Microsoft Network Campaigns, Google My Business Managed Accounts, Google Analytics, Google Tag Manager, Google Webmasters, Google Search Console, Facebook Ad Campaigns, Displays Advertising Campaigns are, and shall always exclusively remain the intellectual property of Strategic Marketing, Inc, and such use by client is only by express written consent of Strategic Marketing Inc. under these terms and conditions and or other express written consent as may be granted by Strategic Marketing Inc. Under no circumstances shall consent be based on any form of verbal consent or inferred by any other means than express written consent. Client recognizes and understands that client does not, and will not receive now or in the future any right, title, interest or claim to said work product or services, and may utilize such work product or services only if granted express written consent by Strategic Marking Inc. to do so. Further, Strategic Marketing may, in its absolute, sole, and exclusive discretion, revoke its consent at any time and for any reason by written notice or email to Client. Further, if Client or Strategic Marketing Inc. cancels this agreement, or Client’s account is canceled, terminated, or suspended for any reason, such cancelation, termination, or suspension will automatically revoke Strategic Marketing Inc’s consent to Client for Clients’ use, access or otherwise benefit from any and all of Strategic Marketing Inc’s work product and/or services without written notice to client. If Strategic Marketing Inc’s. consent to client is revoked for any reason, such revocation shall continue indefinitely till such time as Strategic Marketing Inc. again grants express written consent to client regardless of whether or not client has or retains some or all of said work product or services, pass codes, emails access or any other access to said work product and services. If client’s consent has been revoked or canceled as defined above, client shall be deemed in breach of contract and subject to making full payment for the same and damages and attorney’s fees and costs if client utilizes or accesses in any way said work product and/or services.
2.Client agrees to not use Strategic Marketing, Inc.’s services for hereunder in connection with any (A) infringement or misappropriation of any intellectual property rights; (B) defamation, libel, slander, obscenity, or violation of the rights of privacy or publicity; or (C) SPAMMING or similar actions, or (D) any other offensive, harassing or illegal conduct.
13. No Guarantee of Results.
Strategic Marketing is not a marketing or public relations consultant and does not deem its Services or other related services to as such. Strategic Marketing makes no representations or guarantees regarding effectiveness or timeliness of the Services in meeting your business objectives.
14. Mandatory Indemnification.
You shall indemnify and hold Strategic Marketing, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that access to the Service was unauthorized and such unauthorized access has caused harm to you or a third party; (ii) a claim alleging that use of the Customer Content infringes the rights of, or has caused harm to, a third party; (iii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iv) a claim arising from the breach by you of this Agreement, provided in any such case that Strategic Marketing (a) promptly gives you written notice of the claim; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Strategic Marketing of all liability and such settlement does not affect Strategic Marketing's business or Services); (c) provide to you all available information and assistance; and (d) has not compromised or settled such claim.
Strategic Marketing shall indemnify and hold you and your parent organization, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Services directly infringe on a copyright, a US patent issued as of the effective date of this Agreement, or a third party's trademark; (ii) a claim, which if true, would constitute a violation by Strategic Marketing of its representations or warranties; or (iii) a claim arising from Strategic Marketing's breach of this Agreement; provided that you (a) promptly give Strategic Marketing written notice of the claim; (b) give Strategic Marketing sole control of the claim's defense and settlement (provided that Strategic Marketing may not settle or defend any claim unless it unconditionally releases you of all liability; (c) provide to Strategic Marketing all available information and assistance; and (d) have not compromised or settled such claim. Strategic Marketing shall have no indemnification obligation and you shall indemnify Strategic Marketing pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Services with any of your products, services, hardware or business process(es).
15. Disclaimer of Warranties.
Strategic Marketing and its licensors make no representation, warranty or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Services or any Service Content. Strategic Marketing and its licensors do not represent or warrant that (a) the use of the Services will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the Services will meet your requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information or other material purchased or obtained by you through the Services will meet your expectations, (e) errors or defects will be corrected, or (f) the Services or the server(s) that make the Services available are free of viruses or other harmful components. The Services and all Service Content is provided to you strictly on an "as is" basis, all conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose or non-infringement of third-party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Strategic Marketing and its licensors.
16. Internet Delays.
Services may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. Strategic Marketing is not responsible for any delays, delivery failures or other damage resulting from such problems.
You hereby acknowledge and agree that the Services may be inaccessible for a period or periods of time for purposes of maintenance, installation, update implementation, replacements, back-up or modification. Strategic Marketing hereby disclaims, and you hereby waive, any and all responsibility of Strategic Marketing resulting from Strategic Marketing's inability or failure to provide the Services during such downtime.
18. Limitation of Damages.
Strategic Marketing shall not be liable for any lost profits or consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including negligence, and regardless of whether such damages are reasonably foreseeable. Notwithstanding any provision to the contrary, the liability of Strategic Marketing for any reason and for any cause of action whatsoever in connection with this Agreement, the Services, the Service Content or the services provided by Strategic Marketing shall not exceed the total amount of money paid by you to Strategic Marketing within the 12 months preceding the date on which such claimed damage or injury arose. This paragraph shall survive termination and cancellation of this Agreement.
19. Local Laws and Export Control.
The Services may provide and use software and technology that may be subject to United States export controls administered by the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control and other US agencies. You acknowledge and agree that the site shall not be used, and none of the underlying information, software or technology may be transferred or otherwise exported.
Your notice will be deemed given when received by Strategic Marketing.
21. Amendments and Modifications.
Strategic Marketing reserves the right to modify the terms and conditions of this Agreement or its policies related to the Services at any time, effective upon posting of an updated version of this Agreement on the Strategic Marketing website or upon delivery of a copy of the updated version by email or post. You are responsible for regularly reviewing this Agreement. Continued use of the Services after any such amendments or modifications shall constitute your consent to such amendments or modifications.
You may not assign this Agreement. Strategic Marketing may assign this Agreement without your consent to (i) a parent or subsidiary; (ii) an acquirer or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
23. Forum/Prevailing Party Attorney’s Fees.
This Agreement shall be interpreted and governed under the laws of the State of Oregon. Any action or proceeding arising from or relating to this Agreement must be brought in Federal Court in the District of Oregon or in State court in the Circuit Court of Multnomah, Oregon, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If legal proceedings are brought in any court, arbitration, mediation, or any other tribunal to enforce this agreement, or any of its terms and provision, the prevailing party in such proceedings shall be awarded their reasonable attorney’s fees and costs therein.
This Agreement shall be governed by Oregon law and controlling US federal law, without regard to choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or in the Service shall be subject to exclusive jurisdiction of the state and federal courts located in Portland, Oregon. No text or information set forth on any other purchase order, preprinted form or document (other than a Strategic Marketing order form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment or agency relationship exists between you and Strategic Marketing as a result of this Agreement or use of the Services. The failure of Strategic Marketing to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Strategic Marketing in writing. This Agreement, together with any applicable order form, comprises the entire agreement between you and Strategic Marketing and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.