TERMS OF SERVICE
OF
MAGIC CITY MARKETING, LLC

Revised and Effective as of: 4/1/2022

These terms and conditions of service (including all of other terms and policies referenced herein, these “General Terms”) constitute a legal agreement between Magic City Marketing, LLC (“MCM”) and the party who accepts them regardless of such party’s corporate form or if such party is an individual (the “Customer”), and shall govern Customer’s use of, and dealings with MCM, any MCM products and/or services, including without limitation, MCM’s website (https://magiccitymarketing.co), applications, platforms, ancillary services and, if applicable, tools to drive internet traffic, design of captivating advertisements, building of websites and landing pages (collectively, the “Services”), designed to attract and help convert leads and prospective clients into clients of Customer (each, a “Client”).

Please read all provisions in these General Terms carefully as these General Terms form a legally binding agreement between Customer and MCM. By browsing the MCM website or by requesting or accepting the Services through the hosted website page that is used to facilitate the execution of the Services (the “Order Page”), Customer expressly agrees to the General Terms, all applicable Additional Terms (as defined below), and all other terms and policies referenced below (collectively, this “Agreement”).
If the Customer set forth on the Order Page is a Home Service entity (including without limitation, a landscape company), Customer and its respective signatory, collectively, represent that such signatory has the authority to bind such entity (and its parents, affiliates, or subsidiaries, as applicable) to the terms and conditions contained in this Agreement, and the terms “Customer” shall apply to the Home Service entity. This Agreement is effective between Customer and MCM as of the date that Customer accepts it (the “Effective Date”). Throughout this Agreement, Customer and MCM may each be referred to as a “Party” or collectively, as the “Parties”.

BY CHECKING THE BOX TO AGREE, OR CLICKING ON THE “I AGREE” BUTTON, WHENEVER PRESENTED, TO AGREE TO THESE TERMS OF SERVICE, OR BY SIGNING UP, ACCESSING, OR USING THE SERVICES, CUSTOMER IS ENTERING INTO THIS BINDING AGREEMENT WITH MCM, AND CUSTOMER EXPRESSLY AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

1. Additional Terms for the MCM Services. Additional terms and conditions (collectively, the “Additional Terms”) may apply to certain individual Services offered by MCM, and multiple services may be offered together as a package (each, a “Service Package”). All Additional Terms are governed by, and subject to, this Agreement. Individual Services and Service Packages may be offered through one or more subscription plans (each, a “Subscription”), while certain other Services (the “Ancillary Services”) may be offered on an as-needed basis, upon Customer request. Additional Terms are either expressly referenced in this Agreement or will be made available for review and acceptance before Customer purchases, subscribes to, accesses, or uses the Service Packages, Subscriptions, or other Services to which such additional terms apply. It is Customer’s responsibility to review the Additional Terms for all Service Packages, Subscriptions, or Ancillary Services (if and as applicable) before Customer registers for, purchases, subscribes to, accesses, or uses them. Customer’s use of the MCM Services constitutes Customer’s agreement to be bound by the most current Additional Terms that are applicable, which MCM may amend from time to time in accordance with this Agreement. In the event of any conflict between this Agreement and such Additional Terms, the Additional Terms shall control, but only with respect to the specific Service Package, Subscription, or Ancillary Service that is the subject of such Additional Terms.

Additional Terms for the following Service Packages currently available as part of the MCM Services are provided for Customer’s review at the links below. Any changes to these Additional Terms are governed by Section 2 (Changes to this Agreement) below. MCM may add future Service Packages and further Additional Terms by updating this listing or by otherwise making them available to Customer through one or more applicable websites or other communications.

* Additional Terms – Online Presence Service Package
* Additional Terms – Third-Party Provider Services
* MCM Privacy Policy (the “Privacy Policy”)
* MCM Non-Disclosure Agreement (the “NDA”)

2. Changes to this Agreement.

2.1 Changes to this Agreement and Additional Terms. This Agreement specifically incorporates all Additional Terms that are referenced herein, including but not limited to any applicable pricing terms and privacy policies. MCM may revise and update this Agreement from time to time at MCM’s sole discretion. In each case, MCM will provide Customer with advance notice of such changes (either via the MCM Services, through Customer’s account, or through the contact information associated with Customer’s account).

2.2 Effective Date of Changes. Changes to this Agreement become effective on the date on which MCM post them, which is the date appearing next to the label “Effective as of” or “Revised and Effective as of” at the top of this Agreement (the “Terms Revision Date”). Customer is provided links to review the most current version of this Agreement at any time on MCM’s website before Customer purchases a Subscription to any MCM Services, and vital links made available to Customer before logging into Customer’s account to access and use the MCM Services. Customer acknowledges and agrees that registering for, purchasing Subscriptions to, logging into, accessing, or using the MCM Services after any Terms Revision Date indicate Customer’s acceptance to the version of the Agreement in effect on that date, which are binding upon Customer. Without limiting the foregoing, any changes to the section titled “Dispute Resolution” do not apply to any claims or disputes of which Customer or MCM have actually notified the other on or prior to the date the change becomes effective and binding upon Customer as described in this Section.

2.3 Withdrawal of Acceptance. If within ten (10) calendar days of the Terms Revision Date (the “Acceptance Withdrawal Period”), Customer decides that Customer does not wish to accept the updated terms, Customer may withdraw Customer’s acceptance to the amended terms by providing MCM with written notice of the withdrawal of Customer’s acceptance in accordance with the section titled “Notices” hereof. Upon MCM’s receipt of Customer’s written notice of the withdrawal of Customer’s acceptance, Customer’s rights to use all MCM Services shall terminate immediately, MCM will terminate Customer’s access to the same, and the provisions of the section titled “Effect of Termination” shall apply hereto.

2.4 Notification of Withdrawal. Customer is solely responsible for properly and timely notifying MCM of the withdrawal of Customer’s acceptance to amendments to this Agreement within the Acceptance Withdrawal Period. If Customer does not notify MCM of the withdrawal of Customer’s acceptance to any amendments to this Agreement within the Acceptance Withdrawal Period, then Customer will be deemed to have accepted the updated Agreement, including all amendments, and the updated Agreement will control, from the latest Terms Revision Date going forward.

3. Changes to the Services. MCM reserves the right, at any time and without notice or liability to Customer, to make modifications to the Services that it provides, in whole or in part, temporarily or permanently. MCM may modify the Services for a variety of reasons, including, without limitation, for the purpose of providing new features, maintaining compatibility with emerging standards, or complying with regulatory requirements.

4. Fees.

4.1 Fees for Services. In consideration for the Services provided by MCM under this Agreement, Customer shall pay MCM the fees (the “Fees”) set forth on the Order Page or as otherwise agreed to by MCM and Customer in writing. As used herein, Fees shall incorporate all amounts due and payable for, and in connection with, the Services, including without limitation, the specific amounts for Service Packages and Subscriptions set forth in the Additional Terms.

4.2 Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any national, federal, state, or local governmental entity on any amounts payable by Customer; provided however, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, MCM’s income, revenues, gross receipts, personnel, real or personal property, or other assets.

4.3 Late Payments. Except for invoiced payments that Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law (not to exceed eighteen percent (18.0%) per annum under any circumstance), calculated daily and compounded monthly. Customer shall also reimburse MCM for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which MCM does not waive by the exercise of any rights hereunder), shall be entitled to suspend the provision of any Services if Customer fails to pay any undisputed amounts when due hereunder, and such failure continues for ten (10) days.

5. MCM and Customer Obligations.

5.1 MCM Obligations. MCM shall perform Services set forth herein in a diligent and workmanlike manner, substantially in accordance with specifications and requirements set forth on the Order Page.

5.2 Cooperation. During the Term of this Agreement, Customer shall cooperate with MCM and MCM personnel in its performance of the Services, including, for example, to provide access to Customer’s information, website, network, software, analytical tools, content, and people as required to enable MCM to provide the Services.

5.3 Designated Personnel. Customer will designate and maintain one of its officers, employees, or representatives to serve as its primary contact with respect to this Agreement and with respect to matters pertaining to this Agreement, with such designation to remain in force unless and until a successor is appointed. The representative designated by Customer shall respond promptly to any reasonable requests from MCM for instructions, information, approvals, or authorizations required by MCM to provide the Services.

5.4 Limited Grant of Authority. Customer acknowledges that some of the Services provided by MCM require, or are better implemented, where MCM interacts or contracts with a Third-Party Provider directly and on behalf of Customer. In these instances, the Customer hereby grants (or, in the case of future contingencies, covenants and agrees to grant) MCM/ whatever limited authority is necessary for MCM to execute agreements and otherwise interact with the Third-Party Provider on Customer’s behalf, including the authority to act as agent for Customer for such limited purposes, and Customer shall indemnify and hold MCM harmless against any and all claims, actions or proceedings arising out of the performance of any such action pursuant to such limited grant of authority.

5.5 Feedback. Customer agrees to cooperate with MCM in gauging the effectiveness of the Services and provide access to Customer’s data, website, network, software, analytical tools, content, and people as required to enable MCM to measure the Services effectiveness as it pertains to Customer.

5.6 Fees. Customer agrees to timely pay all Fees and reimburse all expenses when due pursuant, as set forth in the applicable Additional Terms, or, if different, in the corresponding Order Page.

5.7 Compliance. During the Term of this Agreement and following its expiration or termination for any reason, Customer is and shall be solely and exclusively responsible for ensuring that: (i) its business practices; (ii) its use of any Services; (iii) its interactions with Clients or prospective Clients; and (iv) information that it provides MCM complies with all applicable federal, state, and local laws, rules, and regulations (including without limitation, the rules of the Bar Associations or other associations or independent governing bodies applicable to Customer). Customer agrees to promptly notify MCM in the event that it discovers any discrepancy, inaccuracy, or other compliance-related issues in connection with any of the foregoing items set forth in this Section.

6. Intellectual Property.

6.1 Ownership of Confidential Information. All Confidential Information owned or provided by a Party shall remain the exclusive property of that Party.

6.2 MCM’s Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, processes, methods, designs, know how, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) that are owned by MCM shall always remain the exclusive property of MCM (or of its suppliers or licensors, if and when applicable). With the exception of the license provided under Section 7 hereof, nothing in this Agreement grants Customer a license to MCM’s Intellectual Property Rights.

6.3 Customer’s Intellectual Property. All Intellectual Property Rights that are owned by Customer shall always remain the exclusive property of Customer (or of its suppliers or licensors, if and when applicable). Except as otherwise set forth in this Agreement, nothing herein grants MCM a license to Customer’s Intellectual Property Rights.

7. Content and Materials.

7.1 Customer Content. In the course of providing Services, Customer may provide to MCM documents, written works, design, artwork, graphics, video, audio, reports, or other information about Customer (“Customer Content”) that may be utilized by MCM in the course of providing Services. MCM agrees to take commercially reasonable steps to protect and secure such Customer Content. Upon completion or termination of this Agreement, MCM agrees to return the Customer Content to Customer or destroy it (as instructed by Customer). Customer agrees to ensure the accuracy of all Customer Content that it provides to MCM in connection herewith. Furthermore, Customer agrees that MCM shall have sole discretion as to the exact Customer Content that it elects to use and the manner in which it is used; provided, however, that MCM shall not use Customer Content in any manner that is derogatory or that casts Customer in a negative light. In light of the foregoing, Customer hereby grants to MCM a license to utilize the Customer Content for the purpose of providing Services to Customer hereunder.

7.2 Customer Marketing Content. Through the provision of the Services, MCM may provide to Customer, or assist Customer with the creation of, certain content that uniquely identifies Customer and the services that it provides (the “Customer Marketing Content”). MCM may, but is not required to, incorporate Customer Marketing Content into the Services that it provides to Customer, including as part of Websites and Campaigns (respectively, as defined in the Additional Terms).

7.3 MCM Materials. All Intellectual Property Rights to non-Customer specific materials, designs, photography, audio-visual content, templates, written works (excluding Customer Marketing Content) and methodologies incorporated in the Ads and Websites (respectively, as defined in the Additional Terms) provided hereunder, (the “MCM Design Materials”), shall be owned exclusively by MCM (or its licensors or affiliates), and MCM hereby grants Customer a non-exclusive, revocable, worldwide, limited license, solely during the Term of this Agreement, to use its MCM Design Materials as part of Services but not apart therefrom.

7.4 Ownership and License of Customer Content. Customer retains ownership rights to its Customer Content that it provides to MCM in connection with the Services. By making available any Customer Content through the Services, Customer hereby grants to MCM a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to use, copy, adapt, modify, and otherwise process Customer Content for the purposes of providing and improving the Services for all MCM customers. MCM may also perform statistical analyses on Customer Content in connection with developing or optimizing the Services. The use thereof is further explained in MCM’s Privacy Policy.

7.5 Responsibility for Customer Content. MCM does not claim any ownership rights in any such Customer Content, and nothing in this Agreement will be deemed to restrict any rights that Customer may have to use and exploit the Customer Content. Customer is aware that Customer is solely responsible for all Customer Content that Customer makes available to MCM in connection with the Services and that that data abides by the various privacy laws. MCM does not have any obligation to review or scan any Customer Content for any purpose, including without limitation for measuring quality, filtering content, or detecting the presence of malware. MCM makes no representations regarding the compliance of any Customer Content with any applicable laws or regulations.

8. Data.

8.1 Access to Data. Customer acknowledges that MCM may have access to certain information that is submitted by Customer’s Clients or prospective Clients through the use of the Services. Furthermore, Customer acknowledges and agrees that Third-Party Providers may also collect, store, and have access to certain information that is submitted by Customer’s Clients or prospective Clients through the use of the Services, and MCM may also have access to such information.

8.2 Use of Data. To the extent that MCM obtains access to any data of Customer’s Clients through the provision of Services, MCM agrees that it shall only use such data for the following enumerated purposes: (i) providing Services to Customer; (ii) making the Services functional and usable for Customer; (iii) facilitating interactions between Customer and its Clients; (iv) offering or providing additional products and services to Customer; (v) testing and improving the Services; (vi) developing new products or service offerings; (vii) complying with MCM’s legal obligations.

8.3 Security. MCM will implement and maintain commercially reasonable technical and organizational measures to protect Customer’s data and its Services against accidental or unauthorized disclosure or access.

9. Confidentiality.

9.1 Definition of Confidential Information. “Confidential Information” means all non-public, confidential, or proprietary information disclosed on or after the Effective Date, by either Party (a “Disclosing Party”) to the other Party (a “Receiving Party”), or its affiliates, or to any of such Receiving Party’s or its affiliates’ employees, officers, directors, partners, shareholders, agents, attorneys, accountants, or advisors (collectively, “Representatives”), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”, including, without limitation: (i) all information concerning the Disclosing Party’s and its affiliates’, and their customers’, suppliers’, and other third parties’ past, present, and future business affairs including, without limitation, agreements, finances, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales and other commercial strategies; (ii) the Disclosing Party’s unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, unpublished patent applications, and other confidential intellectual property; (iii) all designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing; (iv) any third-party confidential information included with, or incorporated in, any information provided by the Disclosing Party to the Receiving Party or its Representatives; (v) all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials (the “Notes”) prepared by or for the Receiving Party or its Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing; and (vi) all products, processes, Trade Secrets (as defined below), process information, technical information, web page format/layout and all images contained therein, keywords, ad groups, image ads, text ads, computer coding, and other proprietary information that have been created by or on behalf of, owned by, used by, or held by, MCM, which are valuable, special and unique assets of MCM (collectively, “MCM Properties”).

9.2 Exclusions from Confidential Information. Confidential Information does 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. For the avoidance of doubt, the non-disclosure obligations set forth in this Section 9 apply to Confidential Information exchanged between the Parties in connection with the evaluation of additional Services.

9.3 Protection of Confidential Information. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. The Receiving Party will 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) to (i) not 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, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ 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 not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Page to any third party other than its affiliates, Home Services counsel, and accountants without the other party’s prior written consent provided that a party that makes any such disclosure to its affiliate, Home Service counsel or accountants will remain responsible for such affiliate’s, Home Service counsel’s or accountant’s compliance with this Section 9. Notwithstanding the foregoing, MCM may disclose the terms of this Agreement and any applicable Order Page to a subcontractor to the extent necessary to perform MCM’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

9.4 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 will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

10. Term, Termination and Survival.

10.1 Term. This Agreement shall commence as of the Effective Date and shall continue in full force and effect unless and until terminated in accordance herewith (the “Term”). Notwithstanding anything to the contrary herein, the terms of this Agreement shall remain in full force and effect while at least one (1) Subscription to any Service Package remains in effect; once Customer has no active Subscriptions in effect, this Agreement shall terminate.

10.2 Termination.

(a) This Agreement will remain in full force and effect for so long as Customer maintains active at least one Subscription for at least one MCM Service and/or Service Package. Each MCM Service and/or Service Package may provide for its own termination terms and procedures, and such corresponding termination terms and procedures shall control as to the termination of such Service and/or Service Package.

(b) Either Party may terminate this Agreement, all Subscriptions, and all Services effective immediately if the other Party is in breach hereof, and such breach is either (i) incapable of cure, or (ii) being capable of cure, remains without remedy by the breaching Party for thirty (30) days after being notified of the breach.

(c) Notwithstanding anything to the contrary in this Agreement, either Party may terminate this Agreement, all Subscriptions, and all Services with immediate effect in the event of: (i) the suspension of business by the other Party; (ii) the insolvency, the institution of bankruptcy or liquidation proceedings by or against the other Party; (iii) the appointment of a trustee or receiver for the other Party’s property or business; or (iv) in the case of any assignment, reorganization or arrangement by the other Party for the benefit of its creditors.

10.3 Effect of Termination.

1. No Access to Services. Upon termination of this Agreement, all Services, Subscriptions, and access to Service Packages will terminate, and Customer shall no longer have access or use of the same.

2. No Refunds. Customer acknowledges and agrees that it shall not be entitled to a refund of any Fees paid for any reason.

3. Payment of Fees Due. Furthermore, in the event of termination, Customer shall be responsible for, and agrees to pay to MCM, all Fees that are or become due and payable through the date of termination. To the extent that a termination takes place prior to the completion of a the end of a Subscription term, any Fees for such Subscription is due shall accelerate and shall become due and payable on the date of termination. Customer shall be responsible for and agrees to pay to MCM all such Fees within ten (10) days of termination.

4. Third Party Fees. In the event that, after termination, any fees remain owing to Third-Party Providers, Customer agrees to promptly pay all such amounts due.

11. Mutual Representations, Limited Warranties, and Exclusive Remedies.

11.1 Mutual Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.

11.2 Limited Warranty. MCM warrants that it shall perform the Services:

(a) In accordance with the terms and subject to the conditions set out in this Agreement; and

(b) Using personnel of industry-standard skill, experience, and qualifications; and

(c) In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.

11.3 Exclusive Remedies for Breach of Warranties. MCM’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:

(a) MCM shall use reasonable commercial efforts to cure any such breach within a commercially reasonable period of time; provided, however, that if MCM cannot cure such breach within a reasonable time (but no more than thirty (30) days from the date a Notice of breach is provided to MCM), Customer may, at its option, allow MCM to continue its remedy efforts, or terminate the Agreement.

(b) In the event that this Agreement is terminated pursuant to this Section 11.3, MCM shall, within thirty (30) days after the effective date of termination, refund to Customer any fees paid by Customer for Services at issue in the breach of warranty, or fees paid by Customer for Services not yet provided not yet delivered to Customer up to and including the date of termination on a pro-rated basis.

(c) The foregoing remedy shall not be available unless Customer provides written Notice of such breach within thirty (30) days after becoming aware of the breach of warranties by MCM.

11.4 No Other Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 11.1 AND SECTION 11.2, MCM HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, INCLUDING ANY WARRANTIES OF: (A) MERCHANTABILITY; (B) FITNESS FOR A PARTICULAR PURPOSE; (C) TITLE; (D) NON-INFRINGEMENT; OR (E) PERFORMANCE OF SERVICES TO ANY STANDARDS, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION TO, AND IN NO WAY LIMITING THE FOREGOING, MCM MAKES NO GUARANTEES OF SUCCESS RELATED TO THE GOALS OF THE CUSTOMER IN CONTRACTING FOR PROVISION OF THE SERVICES IN ANY MANNER. FAILURE TO ACHIEVE STATED GOALS OF THE CUSTOMER, WHETHER RECITED HEREIN OR OTHERWISE, SHALL NOT CONSTITUTE A BREACH OF THIS AGREEMENT BY MCM, IN ANY RESPECT, AND NO REFUND OF ANY FEES WHICH ARE PAID, OR DUE AND PAYABLE, SHALL BE MADE IN ANY SUCH EVENT.

12. Liability.

12.1 Disclaimer of Liability. IN NO EVENT SHALL MCM BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, LOSS OF REVENUE OR PROFIT, LOSS OF DATA, LOSS OR DIMINUTION IN REPUTATION OR OTHER VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT MCM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL MCM BE LIABLE TO CUSTOMER FOR ANY CLAIMS, LOSSES, OR DAMAGES RESULTING FROM ANY ACTIONS OR OMISSIONS OF MCM OR ANY THIRD PARTY IN CONNECTION WITH INVESTIGATIONS OR ACTS UNDERTAKEN BY LAW ENFORCEMENT AUTHORITIES. FURTHERMORE, MCM SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS OR DAMAGES THAT ARISE OUT OF, OR RESULT FROM, ANY ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS.

12.2 Limitation of Liability. IN NO EVENT SHALL MCM’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNTS ACTUALLY PAID TO MCM PURSUANT TO THIS AGREEMENT IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

13. Indemnification.

13.1 Indemnification by MCM. MCM shall indemnify, defend, and hold harmless Customer against losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (each, a “Claim”) made or brought against Customer by a third party alleging that the use of the Services, as permitted hereunder, infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim; provided that Customer: (i) promptly gives MCM written Notice of the Claim; (ii) gives MCM sole control of the defense and settlement of the Claim (provided MCM may not settle any Claim unless the settlement is accepted by Customer); and (iii) provide MCM with all reasonable assistance, at its own expense. MCM shall have no obligation to defend or indemnify Customer to the extent that a Claim is based on: (a) modification of the Services or Customer Marketing Content by anyone other than MCM or its permitted designee; or (b) use of the Services or Customer Marketing Content other than in accordance with the terms of this Agreement.

13.2 Indemnification by Customer. Customer shall indemnify, defend, and hold harmless MCM against any Claim made or brought against MCM in connection with this Agreement and/or Customer’s use of the Services or Customer Marketing Content, including, but not limited to, negligent, willful, or unlawful acts or omissions of Customer, its officers, employees, and agents for and against allegations that Customer’s use of the Services or Customer Marketing Content breaches this Agreement, infringes or misappropriates the intellectual property rights of a third party, violates any privacy rights or applicable law. In connection with any of the foregoing, Customer shall indemnify MCM for any damages finally awarded against and for reasonable attorney’s fees incurred by MCM in connection with any such Claim.

13.3 Indemnification Requirements. The obligation to provide indemnification is conditioned upon the indemnified Party: (i) timely notifying the indemnifying Party of the claim; (ii) tendering the sole control over the defense and settlement of the claim to the indemnifying Party; and (iii) fully cooperating with the indemnifying Party in the defense and settlement of the claim at the indemnifying Party’s expense. The indemnified Party reserves the right to retain counsel, at the indemnified Party’s sole expense, to participate in the defense of any such Claim. The indemnifying Party may not settle any claim without the indemnified Party’s prior written consent (not to be unreasonably withheld), if the settlement terms would adversely affect the indemnified Party or its rights under this Agreement.

14. Miscellaneous.

14.1 Entire Agreement. This Agreement, including and together with the Order Page, the Additional Terms, the NDA, and the Privacy Policy, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

14.2 Survival. The rights and obligations of the parties set forth in Sections 6, 7, 8, 9, 10, 11, 12, 13, and 14, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. Additionally, the rights and obligations of the parties set forth in the Additional Terms that should survive termination or expiration of this Agreement will survive any such termination or expiration of this Agreement.

14.3 Notices. All Notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address or email set forth on the Order Page or in Section 14.16. Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid) to the address set forth on the Order Page (if to Customer) or Section 14.13 (if to MCM), or via electronic mail. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 14.6.

14.4 Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

14.5 Amendments. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by each Party.

14.6 Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

14.7 Assignment. Either Party may assign its rights or obligations under this Agreement. No assignment or delegation, however, shall relieve Customer of any of its obligations under this Agreement.

14.8 Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.

14.9 No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

14.10 Governing Law and Dispute Resolution. The Parties agree that all of the rights and obligations of the Parties under this Agreement, including the enforcement thereof, shall be governed by, and construed in accordance with, the laws of the State of Florida, USA without giving effect to the principles of Florida law relating to the conflict or choice of laws. The exclusive venue for disputes relating to or out of this Agreement shall be Broward County, Florida, and Customer hereby waives any jurisdictional venue or inconvenient forum objections thereto. Both parties do hereby mutually agree to waive their right to a jury trial in connection with any dispute or conflict relating to or out of this Agreement. Any controversy or claim arising out of or relating to this Agreement, or the breach, termination, or validity thereof, shall be decided by final and binding arbitration is administered by the American Arbitration Association (“AAA”) in Broward County, Florida, USA under its Commercial Arbitration Rules (“Commercial Rules”), and judgment on the award rendered by the Arbitrator may be entered in any court with jurisdiction. The arbitration shall be conducted by one (1) neutral and impartial arbitrator (the “Arbitrator”). The Arbitrator will be appointed by agreement of the Parties, but in the event that the Parties fail to agree on the Arbitrator, the AAA shall appoint an Arbitrator with sufficient understanding of the business and technology issues relevant to resolving the dispute. The Arbitrator shall have the sole power to rule on matters of jurisdiction, arbitrability, timeliness of claims, issue preclusion, and to grant permanent equitable relief. Notwithstanding the foregoing, either Party may seek interim equitable relief (including an injunction or preservation of evidence) in a court of law to the extent that it is necessary to prevent irreparable harm that may be caused to such Party by the breach of this Agreement.

14.11 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in this Agreement, a signed copy of this Agreement delivered by facsimile, email, digital signature service, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

14.12 Force Majeure. MCM shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of MCM including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Customer shall be entitled to give Notice in writing to MCM to terminate this Agreement.

14.13 Force Majeure. MCM may, in its sole discretion, collaborate or utilize the services of independent subcontractors in the performance of Services for Customer hereunder.

14.14 No Exclusivity. MCM retains the right to perform the Services (or other, similar services) for other customers during and after the Term of this Agreement. Customer acknowledges MCM’s right to provide such Services and acknowledges and agrees that nothing in this Agreement shall preclude MCM from entering into an agreement with any other person or entity for the provision of similar services, including those that are similar to or competitive with Customer. Additionally, MCM may have developed, have under development, or in the future may develop services, solutions, or applications that may be directly or indirectly competitive with Customer’s business. Customer acknowledges and agrees that subject to its ownership of its own Intellectual Property Rights and the confidentiality provisions of this Agreement, nothing herein shall impair the rights of MCM to acquire, market, or develop any services, either for itself or on behalf of others, that are similar to the Services being provided to Customer hereunder or that may compete with Customer.

14.15 Non-Solicitation. Customer acknowledges and agrees that, during the Term of this Agreement and for a period of twelve (12) months immediately following the termination thereof for any reason, Customer shall not, directly or indirectly, for itself or for the benefit or account of any third party: (a) solicit or encourage any person to leave the employment or other service of MCM or its affiliates; (b) hire, on behalf of Customer or any other person or entity, any person who has left the employment within the one (1) year period following the termination of that person’s employment with MCM or its affiliates; (c) divert, entice, or otherwise take away from MCM the business or patronage of any MCM customers, or to attempt to do so; or (d) solicit, induce, or encourage any MCM customer, vendor, supplier, or independent contractor to terminate or reduce its relationship with the MCM.

14.16 Comments and Concerns. All feedback, comments, requests for technical support, and other communications relating to the Services should be directed to support@magiccitymarketing.co or Attn: Support, Magic City Marketing, LLC.