Firegang Dental Marketing is referred to herein as “Firegang.” The client/customer entering into a Firegang Dental Marketing Agreement with Firegang is referred to herein as “Client.” Firegang and Client are each referred to herein as a “Party” and, collectively, as the “Parties”. The Following terms and conditions (“Terms”) are a part of each Firegang Dental Marketing Agreement (“Agreement”) and are binding upon Client. In the event of any inconsistency or conflict between the terms and provisions of the Agreement and these Terms, these Terms shall control. Capitalized terms not defined herein shall have the meanings ascribed in the Agreement.
- Acceptance and Modification.
Each Agreement incorporates these Terms, whether or not the Terms accompany the Agreement. Execution of the Agreement shall conclusively evidence such acceptance by Parties of these Terms. These Terms govern the Parties’ relationship set forth in the Agreement.Firegang reserves the right to change these Terms from time to time. If Firegang makes material substantive changes to the Terms, it will notify Client via email provided by Client in the Agreement. If Client does not raise objections via email (addressed Firegang at: [email protected]) within seven (7) days of receipt of notice of changes to the Terms, then Client will be deemed to have accepted the changes to the Terms.
- Relationship of the Parties.
Neither the Agreement nor these Terms shall be construed to create any partnership, principal and agent, joint venture, parent and subsidiary, affiliate, employer and employee or other similar relationship between the Parties. Neither Party may create any obligation or assume any responsibility on behalf of the other Party nor be able to bind the other Party in any way whatsoever.
- Fees and Payment Terms.
Client shall pay the fees for Firegang’s services consistent with the fee schedule, timeline and other terms specified in the Agreement, as well as any and all third-party services contracted by Firegang on Client’s behalf, any communication fees (calls, emails, texts, etc.), and any account-related charges such as paid ads (in any platform) that were run on Client’s behalf, regardless of the invoice date. Client hereby authorizes Firegang to use any Client payment method on file for purposes of paying any outstanding balances owed to Firegang.
Unless otherwise specified in the Agreement, monthly invoices will be sent electronically and are due upon receipt. All payment methods on file may be used for any collection efforts, in U.S. Dollars, and are non-refundable. Client may not withhold payment in the event of a dispute related to the Agreement or the services provided thereunder. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Firegang may accept payment in any amount without prejudice to Firegang’s right to recover the balance of the amount due or to pursue any other right or remedy. Client shall pay to Firegang, on demand, any and all expenses, including, but not limited to, reasonable collection costs, all attorneys' fees and expenses, and all other expenses, which Firegang may incur in enforcing Client’s payment obligation to Firegang under the Agreement. In the event any outstanding balance owed to Firegang is placed for collection with a collection company, a fee of fifty percent (50%) of the balance due shall be added as a collection fee.
- Possessory Lien.
Firegang shall have a possessory lien on all Client assets (whether tangible or intangible) in Firegang’s possession or control for the failure of Client o pay any balance due to Firegang.
- Term and Termination.
The term of each Agreement shall commence on the “Effective Date” and continue through the expiration of the “Initial Term,” as such terms are defined in the Agreement. Thereafter, the Agreement will be extended automatically for additional consecutive terms of six (6) months (each, a “Renewal Term”) at the end of the Initial Term or the then-current Renewal Term, unless Client provides written notice of non-renewal and completes and returns the Offboarding Form at least sixty (60) days’ prior to the end of the Initial Term or the then-current Renewal Term, as the case may be, at the email address set forth in Section 15 hereof. Client may not terminate the Agreement prior to the expiration of the Initial Term or the then-current Renewal Term, except as set forth in the preceding paragraph. For clarity, should Client terminate this Agreement prior to expiration of the Initial Term or the then-current Renewal Term, Client shall remain liable for all contractually due payments through the expiration of the Initial Term or the then current Renewal Term, as the case may be. Firegang may suspend services (including services related to the transfer of data assets) under the Agreement and deactivate Client’s website(s) if Client is in breach of any of the provisions of the Agreement or these Terms, including, without limitation, Client’s failure to timely comply with the payment obligations under the Agreement. Client will continue to be responsible for fees during any period that services are suspended due to Client’s breach thru the end of the original contract term.
- Proprietary Rights:
Once payment of all amounts due under the Agreement is received by Firegang, Firegang grants to Client: (a) an irrevocable, non-exclusive, non-transferable, non-sublicensable, limited license to use web content produced for Client by Firegang, including the design, images and pages on one website on one domain name only, and excluding any non-transferrable third-party intellectual property and components, and (b) Client metrics tracked by Firegang under the Agreement. Notwithstanding the foregoing: (a) Firegang shall retain and continue to own all intellectual property rights including but not limited to preexisting materials, information, know-how, data created, “Pay-per-click” advertising accounts, web designs, images, pages, code and source files created by Firegang; and (b) Firegang retains the right to display graphics and other web content elements as examples of Firegang’s work.
- Use of Client Data.
Client agrees and acknowledges that Firegang may collect and use all Client data and metrics gathered periodically to facilitate the provision of services under the Agreement. Firegang may use such information for the improvement of future services, marketing needs, case studies, ROI reports, and any other lawful purpose. Client shall not directly or indirectly attempt to, nor shall it disable, restrict or otherwise interfere therewith.
- Mutual Non-Disparagement
Firegang and Client shall not make, cause to be made, publish, ratify or endorse, orally or in writing, any statement about the other party which is intended or reasonably likely to disparage the other Party, or otherwise degrade the other Party's reputation in the business community or the dental or marketing industry.
Client agrees that it shall defend, indemnify, save and hold harmless Firegang, its directors, officers, employees, contractors, representatives and agents, from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys’ fees and costs (“Liabilities”) arising from, related to or associated with: (a) services provided by Firegang under the Agreement; (b) service provided or performed or agreed to be performed or any product sold by the Client, its agents, employee or assigns; (c) any injury or damage to any person or property caused by any products or services provided, sold or otherwise distributed over the Client’s website(s), including products or services that infringe on the proprietary rights of a third party, copyright infringement, & delivering any defective product or misinformation which is detrimental to another person, organization, or business; or (d) Firegang’s use of materials furnished by Client for inclusion in web pages and other marketing materials.
- Limitation of Liability.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL FIREGANG BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE SERVICES PROVIDED BY FIREGANG, HOWEVER, CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF FIREGANG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FIREGANG’S TOTAL LIABILITY FOR ALL DAMAGES EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT AND RECEIVED BY FIREGANG. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Communications to Client Customers.
Client hereby authorizes Firegang to send marketing and other communications to Client’s customers on Client’s behalf. Client represents and warrants that all of its customers to which Firegang may communicate have given Client and Firegang permission to send such communications.
Firegang cannot warrant that the services provided under the Agreement will meet Client’s expectations or requirements, including, but not limited to revenue, return on investment, and specific outcome of work provided. Client expressly acknowledges and agrees that to the maximum extent permitted by applicable law, Firegang’s services under the agreement are provided "as is" and “as available” without warranty of any kind. Firegang hereby disclaims all warranties and conditions with respect to any services provided under the Agreement, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights, performance or inability to perform under the Agreement, the content, and each Party’s computing and distribution system, and any implied indemnities.
Without limiting the generality of the foregoing, Client acknowledges and agrees that:
- Firegang has no control over the policies of search engines or directories with respect to the type of websites and/or content that they accept now or in the future. Client’s website(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity. Firegang will resubmit those pages that have been dropped from the index.
- Firegang has no control over and is not responsible for any changes, decisions, or effects by any search engine in rankings, inclusion, and/or algorithms that may affect the placement of any web property caused or not by search engine optimization services.
- Some search engines and directories may take as long as two (2) to four (4) months, and in some cases longer, after submission to list Client’s web site(s).
- Occasionally, search engines and directories will stop accepting submissions for an indefinite period of time.
- Occasionally, search engines and directories will drop listings for no apparent or predictable reason. Often listing will “reappear” without any additional submissions. Should the listing not reappear, the Agency will re-submit the web site(s) based on the current policies of the search engine or directory in question.
- Entire Agreement, No Oral Modification.
The Agreement, together with these Terms, constitutes the entire agreement between the Parties concerning the subject matter contained herein, and supersedes all previous or contemporaneous negotiations, understandings, and written or verbal agreements or contracts between the Parties, whether oral or in writing, related thereto. No modification of the Agreement shall be binding on the Parties unless made pursuant to a written amendment signed and dated by the authorized representatives of each Party.
Client and its employees shall not disclose, publicly or privately, any details related to Firegang’s business model, practices, forms, contracts, documents, or any other materials provided by Firegang to Client, without Firegang’s prior written approval.
- Client Intellectual Property Rights.
In performing the services under the Agreement, Firegang may use and incorporate information and materials provided by Client. Client hereby represents and warrants that any elements of text, graphics, photos, designs, video, trademarks or other artwork furnished to Firegang for inclusion in websites and other marketing materials are owned by or licensed to Client, and do not infringe on proprietary rights of any third party.
- Dispute Resolution; Governing Law, Arbitration.
In the event of any dispute, controversy or claim arising out of or related in any manner to the Agreement or these Terms, Client and Firegang agree to negotiate in good faith for a period of thirty (30) days from the date of notice of such dispute. If the Parties are unable to resolve the dispute during the 30-day period, then any such disputes shall be settled by arbitration in accordance with this Section. The Parties will submit all disputes to arbitration in Spokane, Washington before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall be selected by application of the rules of the AAA, or by mutual agreement of the Parties, except that such arbitrator shall be an attorney admitted to practice law Washington. All disputes shall be governed and interpreted in accordance with the laws of Washington, without regard to principles of conflict of laws. Neither Party will challenge the jurisdiction or venue provisions as provided in this Section. The decision of the arbitrator shall be final and binding on the Parties. The arbitrator shall be empowered to award money damages, but shall not be empowered to award consequential damages, indirect damages, incidental damages, special damages, exemplary, punitive damages or specific performance. Each Party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to the Agreement or the Terms, except that either Party may seek a preliminary injunction or other injunctive relief in any court of competent jurisdiction if in its reasonable judgment such action is necessary to avoid irreparable harm.
Any notices provided to Firegang under the Agreement and these Terms must be transmitted via email to: [email protected]. Upon receipt of any notice of termination, Client will be required to complete an Intent to Cancel form.
The provisions of the Agreement shall be binding through both the Agreement and Renewal Term. Client may not assign, delegate or otherwise transfer (including by merger, reorganization, change in control, or operation of law) any of its rights or obligations under this Agreement without the prior written consent of Firegang, and any purported assignment made without Firegang’s consent is void.
If any provision of the Agreement or these Terms are determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement and these Terms will continue in full force and effect.
Sections 3, 4, 7, 8, 9, 14, 16 and 20 shall survive any termination or expiration of the Agreement.
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