Termination for Cause

In the event either party materially fails to perform or comply with any provision of this Agreement, and fails to remedy such default within thirty (30) days following receipt of written notice of such default from the non-defaulting party, then the non-defaulting party will have the right, at its sole option and upon written notice to the defaulting party, to terminate this Agreement without prejudice to any other remedies the non-defaulting party may have, whether at law or in equity. Notwithstanding the foregoing, should at any time the fees due to Softline remain unpaid for more than thirty (30) days past the due date, Softline shall have the right to suspend providing all services to Client until all fees are brought current are due and paid in full or to terminate the Agreement, at Softline’s option.

Obligations after Termination. Each party will immediately cease all reproduction and use of the other party’s trademarks and Confidential Information, and return or destroy the other party’s Confidential Information, at the other party’s discretion, within five (5) days after the termination of this Agreement. Additionally, Client shall remit any outstanding fees to Softline within five (5) days after termination of this Agreement. Any payment due within thirty (30) days of termination shall be due and payable in full and shall not be prorated.

Other Terms 

Representations and Warranties. Each party represents and warrants that (a) it has the full corporate right, power and authority to enter into this Agreement and perform the acts of it required hereunder and (b) when executed and delivered this Agreement will constitute the legal, valid and binding obligation of the party enforceable against it in accordance with its terms. Client further represents and warrants that Client owns all right, title and interest in and/or has the right to license and/or provide Softline with all Client Materials (“Client Materials”), and that Client’s provision and Softline’s use of such Client Materials does not and shall not infringe upon in the intellectual property or proprietary rights of any third party. Softline expressly disclaims any warranties or guarantees with regard to any revenue, profits, Client’s Website traffic, rankings, prospective/new customer or sales Client may or may not receive in connection with this Agreement.

Ownership Client shall retain all right, title and interest in Client Materials. Softline shall retain all right, title and interest in any and all Softline intellectual property, and in content created by or on behalf of Softline for Client if clients fail to make payment based on the initial agreement set forth.

Indemnity Client, at its own expense, will indemnify, defend and hold harmless Softline, its parent and its subsidiaries, and its and their directors, officers, shareholders, members, employees, representatives and agents, vendors, affiliates, suppliers and contractors (each, an “Indemnified Party”) from and against any and all claims, actions, damages, liabilities, losses, costs or expenses (including reasonable attorneys’ fees and court costs) arising from any third party claim brought against an Indemnified Party (a) alleging that any Client Materials infringe upon the intellectual property or proprietary rights of a third party; (b) resulting from a breach of Client’s representations, warranties and covenants hereunder, and (c) Client performance or non-performance of Client’s business.

Paid Search Terms (PPC). Softline shall conduct the following activities: 

a. Subject to Client’s activities in 2.4 below, Softline shall perform an initial business assessment to determine the appropriate PPC activities to undertake for Client.

b. Softline will create ads as necessary to increase Click Through Rate and conversions. All ads shall be subject to Client’s prior review and approval.

c. Softline will report any major fluctuations in ad placement and cost for specific keywords to Client so that Client may consider altering the budget or price for the keywords. PPC advertising providers and search engines are not under Softline’s control, and keywords bid on can change ad placement and/or cost at any time. Softline shall not be responsible or liable for any ad placement or cost changes by PPC advertising providers. Further, Softline shall not be, and Client shall solely be, responsible and liable for intellectual property infringement claims for ads, keywords and/or phrases chosen and approved by Client and used by Softline in providing PPC services or on the Client’s Website.

Client’s Responsibilities. Client agrees to the following:

a. The agreed upon daily PPC budget is agreed upon in a separate document that is signed prior to Softline launching campaigns on any paid search platforms. Client acknowledges and agrees that the actual amount spent on any given day may exceed the daily budget up to twenty percent (20%), but the total budget may not be exceeded without Client’s prior written approval.

b. Client shall promptly provide information and assistance as requested by Softline so that Softline may adequately perform the initial business assessment and determine the appropriate PPC campaign.

c. Client shall promptly provide Softline with an initially targeted keyword list in order for Softline to initiate the keyword research and provide an estimate of the Cost Per Click (CPC). The initial keyword list will also be used to research additional keywords required to achieve optimal CPC, quality score, customer base and the market targeted by Client in order to achieve the overall internet marketing objective.

d. Client hereby grants Softline permission to use Client’s pictures, logos, trademarks, graphics, text, website images and content, and any other content or materials provided by Client (“Client Materials”) as Softline deems necessary or helpful for Softline’s PPC activities.

Limitation of Liability Except as expressly set forth in this agreement, Softline makes no warranties or guarantees, express or implied, concerning Softline’s services, and Softline expressly disclaims all implied warranties to the extent permitted by law, including, but not limited to, any implied warranty arising by statute or other law, from a course of dealing or usage of trade, implied warranties of merchantability, fitness for a particular purpose and non-infringement. Softline’s maximum liability will in no event exceed the aggregate amount actually paid by the client to Softline under this agreement. Softline will not be liable to client, whether in contract, warranty, tort (including negligence, product liability or strict liability), or otherwise for any indirect, incidental, special, exemplary, punitive or consequential damages arising out of Softline’s performance or non-performance of this agreement or the use of, inability to use or results of any website, content, materials or other items furnished under this agreement, even if Softline was advised of the possibility of such damages.

The operation of Web Sites. Each party will remain solely responsible for the operation of its own website, and each party acknowledges that (a) the website may be subject to temporary shutdowns due to causes beyond the operating party’s reasonable control and (b) subject to the specific terms of this Agreement, each party retains the sole right and control over and responsibility and liability for the programming, content and conduct of transactions and business over its website. 

Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications, whether oral or written. It will not be modified except by a written agreement signed on behalf of the parties hereto. 

Confidential Information Each party will treat as confidential and shall not disclose (a) the trade secret and proprietary information of the other party; (b) the terms of this Agreement and the relationship between the parties; and (c) any and all information or materials disclosed to or otherwise acquired from the other party in the course of or as a result of its performance of its obligations under this Agreement, including, but not limited to, information or data relating to technology, products, services, business plans, fees, marketing plans or legal affairs of the other party (individually and collectively referred to as “Confidential Information”). These obligations will survive the termination of this Agreement for a period of one (1) year, except for a party’s trade secrets, in which case a party’s confidentiality obligations will survive in perpetuity so long as they remain trade secrets of the disclosing party, and neither party may make use of Confidential Information except under the terms of this Agreement. These confidentiality obligations will not apply to any information which: (i) is or subsequently becomes available to the general public other than through a breach of this provision; (ii) is already known to the receiving party before disclosure by the disclosing party, as evidenced by adequate documentation; (iii) is developed through the independent efforts of the receiving party; or (iv) the receiving party rightfully receives from a third party without restriction as to confidentiality or use. Either party may disclose Confidential Information concerning the terms of this Agreement to its directors, employees or consultants on a “need-to-know” basis only, provided such persons agree to keep such information confidential in accordance with the terms of this Agreement. 

Relationship of Parties This Agreement does not constitute a hiring by either party. The parties are independent contractors and are in no way authorized to make any contract, agreement, warranty or representation on behalf of the other party, or to create any obligation, express or implied, on behalf of the other party. Nothing herein will be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or joint venture between the parties hereto.

Waiver. One or more waivers of any covenant, term or condition of this Agreement by either party will not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by the other party requiring such consent or approval will not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act.

Dispute Resolution; Applicable Law; Jurisdiction. This Agreement will be governed by, and construed in accordance with, the substantive and procedural laws of the State of California, excluding its conflict of law principles. Any dispute in connection with this Agreement shall first be submitted to mediation, with the parties to jointly select the mediator and jointly pay the mediator’s fee unless otherwise agreed by the parties in writing. The mediation shall take place in the County of Los Angeles, State of California. The obligation to mediate disputes under this section shall not apply to matters subject to the jurisdiction of the Los Angeles County small claims court. Should the parties be unable to resolve the dispute in mediation, the parties may resort to any other remedy at law or equity; provided, however, that any action or proceeding brought in connection with this Agreement, whether in law or equity (including actions in small claims court), will be filed exclusively in a court of competent jurisdiction located in the County of Los Angeles, State of California. The parties hereby waive any objection they may have in any such action based on lack of personal jurisdiction, improper venue or inconvenient forum.

Assignment. The client may not assign this Agreement, in whole or in part, without Softline’s prior written consent. The terms, provisions and covenants contained in this Agreement will inure to the benefit of and are binding upon the parties hereto and their respective heirs, successors in interest and permitted assigns.

Notices. Any notice or other communication required in this Agreement shall be in writing and will be sent by United States Certified Mail, return receipt requested, postage prepaid, by nationally recognized overnight courier guarantee next day delivery, via e-mail, by facsimile with proof of transmission, or by personal delivery, properly addressed to the party in the first paragraph of this Agreement.

Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

Attorney’s Fees; Collection Costs. If either party employs attorneys (or utilizes in-house attorneys) to enforce any rights arising out of or relating to this Agreement, the prevailing party will be entitled to recover reasonable attorneys’ fees. Furthermore, Client agrees Softline shall be entitled to recover all reasonable fees, expenses and/or costs (including attorney’s fees, in-house counsel costs, court costs, expenses and other costs) incurred in collecting or attempting to collect payment from Client to the extent not prohibited by applicable law.

Force Majeure. If either party fails to perform its obligations as set forth herein, as a result of strikes, lockouts, labor disputes, embargoes, acts of God, inability to obtain labor or materials or reasonable substitutes, governmental restrictions, judicial orders, war or other governmental actions, civil commotion, fire or other casualty, beyond the reasonable control of the party obligated to perform, then that party’s performance shall be excused for a period equal to the period of such cause for failure to perform. However, at any time after a sixty (60) day period of such nonperformance, either party may terminate this Agreement on ten (10) business days prior written notice thereof to the other party. Survival. Sections 1.5, 2.3(c)(last sentence), 3, 4.3 and 5 shall survive the expiration or termination of this Agreement.

Change in Fees. Softline reserves the right, at its sole option, to change any of the prices set forth in this Agreement upon providing Client with at least thirty (30) days’ prior notice. Late Payment Charge. Any compensation or fees owed to Softline by Client under this Agreement which is not paid within thirty (30) days of the due date will be considered delinquent and a late payment charge of the lesser of one and one-half percent (1.5%) of the delinquent balance due or the maximum amount permissible by law will be assessed per month on the amounts that remain delinquent.

Additional Services. Should Client desire that Softline provide additional services other than those set forth this Agreement, such services shall be at an additional cost and shall require an amendment to this Agreement or a separate written document. This Agreement is binding and effective on the Effective Date upon accepting the agreement.

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