HFB TECH PRODUCTS AND SERVICES GENERAL TERMS AND CONDITIONS
1. INTRODUCTION: HFB TECH, LLC, a Utah limited liability company (“HFB”), agrees to provide you (the “Customer”) with internet based products and services including, but not being limited to domain registrations, logo designs, google listings, and other support and services (“Advertising Services” as further defined in Section 5 below), subject to the Customer’s compliance with the terms and conditions hereafter outlined (the “Terms and Conditions”). Please read the Terms and Conditions carefully. As a customer engaging HFB for its Advertising Services, Customer agrees to be bound by these Terms and Conditions, both for current and for any additional services for which it may contract with HFB, including all payment terms (collectively, the “Agreement”). By “Customer,” as we use that term herein, we mean you, whether you are using the Advertising Services yourself, or whether you are securing the advertising services as agent for the actual Customer. In the latter case, you represent that you have authority to legally bind the Customer you are representing, and both you and the Customer you are representing are jointly and severally bound as if you each separately consented to this Agreement.
2. ACCEPTANCE OF THESE TERMS AND CONDITIONS: Customer or its agent or representative warrants that Customer accepted by signing the related Small Business Agreement Order Form (the “Order”), verbally accepted a summary of key provisions related to payment, terms of service, and HFB’s cancellation policy, and/or expressly accepted these Terms and Conditions in response to an email with confirmation link, and affirmative action in the form of checking the “acceptance” box and clicking “submit” following an opportunity to review these Terms and Conditions.
3. THREE-DAY CANCELLATION: If, subsequent to customer’s verbal or other acceptance of the summary terms and conditions, customer does not agree to be legally bound by these terms and conditions, customer may notify HFB within three (3) business days of its order by emailing customer’s name, business name, email address, physical or mailing address, and domain to HFB at the address listed in the order with “Cancel Services” in the subject line, and the advertising services will be canceled with no further obligations by either party, provided, however, that notice is received before 5 pm usa mountain time and customer shall be responsible for costs of all advertising services provided until such cancellation procedure is followed. Failure to notify HFB of this 3-day cancellation according to the process defined above, along with HFB’s electronic record of customer’s acceptance shall be deemed to indicate that customer waives its right to cancel (including with respect to any automatically recurring payments), has read and understood these Terms and Conditions, and agrees to be bound by them.
4. PERSONAL INFORMATION: By agreeing to these Terms and Conditions, Customer also agrees to receive information from HFB regarding Customer’s account, and about the Advertising Services provided to Customer (together “Service Messages”). Customer also agrees to receive marketing information from HFB about HFB promotions or announcements or offers to provide additional or enhanced services (“Marketing Messages”). During the time that Customer is receiving the Advertising Services, Customer cannot opt out of the Service Messages. If Customer does not wish to receive the Marketing Messages, it must opt out by sending an email containing Customer’s name and account number, with the subject line “Marketing Messages Opt-Out,” to CFB at the address listed in the Order.
5. DESCRIPTION OF THE ADVERTISING SERVICES: Advertising Services are the products and/or services by which HFB will market Customer’s business/service through various online methods, websites, etc. (the “Advertising Services”). The specific Advertising Services shall only include those expressly listed in the Order. Said Advertising Services may include any of the following:
Local Marketing, Search Engine Optimization, Paid Search Services, Social Media Marketing, Social Media Promotions (coupons and sweepstakes), Feedback & Reviews, Reputation Management, and Call Tracking & Reporting.
Regardless of the Advertising Services being provided to Customer, HFB will provide to Customer an Account Information Page which may be accessed by Customer at any time to determine the status of Customer’s account and the services provided by HFB. Customer may at any time determine what Advertising Services are currently being provided by HFB by checking Customer’s Account Information Page. Customer should understand that clicks to Customer’s site, including clicks on the search engines, shopping engines, content sites, etc. may include certain misspellings, singular/plural combinations, and other related search terms that HFB maps to Customer’s advertising campaigns. However, misspellings are becoming less common with new auto complete search engine technology. All keyword campaigns will include key terms, titles, and descriptions selected specifically with the intent to optimize return on advertising spend.
Unless Customer has engaged HFB to provide a small-scale website, Customer is responsible for the quality and accuracy of its own website and its landing page(s), or redirect websites that link to its advertisements.
6. FEES FOR HFB ADVERTISING SERVICES: Customer may at any time determine the fees and pricing currently applicable to any Advertising Service being provided by checking Customer’s Account Information Page or by calling HFB at the telephone number listed in the Order. Fees and pricing for the Advertising Services generally are as set forth at the individual product/service terms and conditions pages described above. By accepting these Terms and Conditions, Customer expressly agrees to pay the fees and pricing for the Advertising Services requested, and which were communicated to Customer at or before the time of acceptance.
7. PAYMENTS: Customer’s method of payment is set forth in the Order. Customer may change the method of payment from time to time upon written approval from the HFB. All fees must be paid in United States dollars. Customer is solely responsible for any applicable taxes. All fees are due in accordance with the agreed upon fee schedule set forth in the Order, and/or immediately upon Customer’s receipt of invoice, as applicable. Customer agrees that any setup fees or one-time services payments are nonrefundable.
Payments methods are limited to the one of the following two methods of payment: 1) Credit card to be automatically billed by HFB, or 2) Bank account to be automatically debited by HFB. Customer authorizes HFB, or HFB’s merchant services provider, to store Customer’s financial information for the purpose of facilitating payment to HFB. It is Customer’s responsibility to notify HFB, in writing, of any changes or updates to Customer’s financial information, and Customer is solely responsible for its failure to do so.
8. LATE PAYMENTS AND INTEREST: Payments made by billing of a credit card or debiting of a bank account are intended in part to avoid the inconvenience and cost to both parties of late or missed payments. However, it is Customer’s responsibility to ensure that HFB has the most up-to-date credit card or bank account information, and that such methods are viable for payment of the fees due to HFB for the Advertising Services. In the event of a failure of the payment method authorized by Customer, and one or more payments are made later than the due date, such late payments are subject to a late fee equal to the greater of $25 or 6% of the total payment due, but not to exceed the maximum amount allowed by applicable law. In addition to late fees, Customer agrees to pay interest on any outstanding amount at the rate of 2% per month as well as all attorneys’ fees and costs incurred by HFB for late payment collection efforts.
If Customer shall default in any of its payments or other obligations hereunder, HFB may, at HFB’s option and in HFB’s sole and absolute discretion, by written notice (which may include electronic mail to the email address provided to HFB by Customer) to Customer, terminate all Advertising Services, including retaining ownership of the Domain as provided herein, with HFB retaining all payments made by Customer hereunder.
9. RECURRING PAYMENTS AND TERM OF AGREEMENT: In the event that Customer wishes at any time to determine the current contract term for any of the Advertising Services, or any other information regarding the amount or anticipated date of any automatically recurring payment, or the term, termination, or renewal of the Advertising Services, the same will be available for reference on Customer’s Account Information Page or by calling HFB. The term of each Advertising Service shall begin as of the date of acceptance of the Order by Customer and HFB. Billing will occur in the form of a one-time payment or an automatically recurring monthly payment, as set forth in the Order.
All payments for Advertising Services will be paid in advance on a monthly by month basis. Following the term for any particular Advertising Service as set forth on the Order, this Agreement with respect to such Advertising Service shall automatically renew for successive one-month terms on the monthly anniversary date of Customer’s initial acceptance of the Order. After the initial contract term, Customer may cancel the automatically recurring payment, including the Advertising Services associated therewith, by providing notice to HFB by emailing Customer’s name, business name, email address, phone number, physical address, and domain, to HFB at the email address provided in the Order with “Cancel Service” in the subject line. Provided such notice is received by HFB not later than 5:00 pm USA Mountain Time at least (3) three business days in advance of the date on which the next automatically recurring payment is scheduled to be made, then the next automatically recurring payment will be cancelled, and the Advertising Services terminated at the end of the then-current term. In the event such notice is received closer than three (3) business days to the next automatically recurring payment, then the next automatically recurring payment will still be made as a final payment, the Advertising Services shall continue for an additional renewal term, and termination will instead occur at the end of that additional renewal term. No pro-rated refunds for partial terms or months will be provided.
10. EARLY TERMINATION FEE: In the event Customer chooses to terminate services prior to completion of the contract term as set forth in the Order, then Customer agrees to pay an early termination fee equal to the remaining Contract Value. Contract Value is determined by taking the number of months agreed to in the contract or insertion order times the monthly fees applicable to the Advertising Services. For example, the Contract Value of Advertising Services of $1000 for a three month term is $3000. If the Customer cancels after the first month the cancellation fee will be $2000.
11. MODIFICATION: Customer understands that HFB may modify its standard terms and conditions and service offerings from time to time and that HFB reserves the right to adjust the pricing of such services, effective upon the next automatic renewal date of the affected Advertising Service(s), after not less than thirty (30) days’ advance written notice to Customer. Following the fulfillment of initial contract terms, if the contract does not provide for automatic renewal for an additional term of more than one month, then the contract shall be considered month-to-month and Customer may be subject to revised terms and conditions and/or pricing following receipt of such notice. Customer is encouraged to enter a long-term contract or contracts to fix pricing, terms, and conditions. Customer and HFB can change the Advertising Services at any time upon mutual agreement.
12. ACCESS: Customer is authorized to access HFB-owned, operated, or hosted websites that require log in or account information solely to manage Customer’s advertising account(s). Customer agrees that it will not use the site or any content therein for any other purpose and that it will not disseminate or distribute any of said information. Customer’s right to access its account with HFB is personal to Customer and non-assignable and is subject to any limits established by HFB. Customer agrees that it will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access Customer’s account with HFB or to monitor or copy HFB’s website or the content contained therein, except those automated means expressly made available by HFB.
13. LATENCY: Customer understands that, any information or data provided by Customer to HFB may not be processed on a real-time basis and may be subject to the latency of the Internet, the HFB systems and network of third-party partners and search engines.
14. OWNERSHIP OF NON-CUSTOMER PROPERTY: Title and full ownership rights in and to the Advertising Services, together with any and all ideas, concepts, campaign optimizations, computer programs, and other technology supporting or otherwise relating to HFB’s operation of the HFB network, the HFB bid management, task management, and optimization platform and website(s) (collectively, the “HFB Materials”), shall remain at all times solely with HFB and/or with the respective outsourced service provider or author, or with HFB’s Promotional Partner if applicable and if Promotional Partner was the owner of the same. Customer acknowledges that it has not acquired any ownership interest in the HFB Materials and will not acquire any ownership interest in the HFB Materials by reason of this Agreement.
15. OWNERSHIP OF DOMAIN NAME: In the event that the Advertising Services described in the Order includes the registration of a Domain Name, then it is expressly agreed that HFB may register said Domain or Domain Name for the benefit of Customer hereunder and pursuant to the terms hereof. By execution of the Order or otherwise agreeing to its terms, Customer agrees and expressly acknowledges that HFB shall retain legal, equitable, and beneficial ownership of the Domain until such time as the Customer has made all payments in full as may be due under the Order or as set forth in these Terms and Conditions. If Customer does not pay all amounts in full during the term of the Order, then HFB shall retain ownership of the Domain and is under no obligation to convey or transfer the same to Customer. This may include the rights to any and all traffic generated by or passing through said Domain. Otherwise, the Customer may provide a Domain previously purchased, in which, Customer will maintain ownership throughout the term of the Order.
16. ASSUMPTION OF LOSS OR DAMAGE: All risks of loss or damage of or to the Customer, Customers employees, agents, assigns, directors, managers, members, or any third party beneficiary of Customer resulting from the content of Customer, actions of Customer, or in any way related to this Agreement, from whatever cause, are hereby assumed by the Customer during the term of this Agreement and for a period of two years beyond the term hereof
17. CUSTOMER’S SITE: Unless Customer’s website is designed and provided by HFB as a part of its Advertising Services, Customer hereby acknowledges that neither HFB nor any of its affiliates are (if applicable) is responsible for the development, maintenance, and operation of any Customer website, nor for any content or other materials that appear on, and all visitors to, any Customer website, nor is HFB or its affiliates responsible for order entry, payment processing, shipping, cancellations, returns, or customer service concerning orders placed on any Customer website. Customer further warrants that it will not add to or place upon its site any HFB or Promotional Partner owned or licensed content, including but not limited to any HFB search listings, except pursuant to a separate signed affiliate agreement with HFB.
18. CUSTOMER REPRESENTATIONS AND WARRANTIES: Customer represents and warrants to HFB that for and continuing throughout the term of this Agreement:
a. this Agreement constitutes a valid, binding, and enforceable agreement in accordance with its terms;
b. Customer is responsible for its own responsiveness to communications and inquiries from HFB and acknowledges that any lack of responsiveness could materially impact the effectiveness of the Advertising Services;
c. Information, content, images or data that Customer (including its agents or representatives) has provided or will provide for Advertising Services is and will be both accurate and complete to the best of Customer’s knowledge and that Customer has a legal right to use such information, content, images or data;
d. Customer is the authorized owner or representative of the website(s) for which Advertising Services will be performed unless the website to be promoted by the Advertising Services is designed and provided by HFB; and,
e. Customer’s website and information, content, images or data provided to HFB does not violate any applicable law or regulation; does not infringe in any manner any third party rights, including, without limitation copyright, patent, trademark, trade secret, or other intellectual property right or right of privacy or publicity; is not false or misleading; has not and will not result in any consumer fraud, product liability, breach of contract, injury, damage, or harm of any kind to any person or entity; is not defamatory, libelous, slanderous, or threatening; is free of viruses; does not contain, promote, or offer any form of spyware, adware, or other advertising or information collection software; and/or does not contain, link to or promote any of the following: violence, hate crimes (whether racial or otherwise), illegal activities, discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
19. CUSTOMER COVENANTS: Customer further expressly agrees and warrants as follows:
a. Customer will not hold HFB or its affiliates, or Promotional Partner or its affiliates, if applicable, liable or responsible for the activities of visitors who come to Customer’s website(s) through Advertising Services.
b. In the event that Customer has been referred to the Advertising Services by or through an HFB partnership promotion, such that Promotional Partner is a beneficiary of these terms and conditions, Customer agrees that HFB may share all data it obtains, including product performance data, with Promotional Partner, and Promotional Partner shall have the same rights to access and use said data as HFB itself.
c. Customer agrees that if the Advertising Services ordered from HFB include paid search management, and if the paid search management is being performed through an existing account rather than HFB’s account, then Customer will grant HFB exclusive administrative access to said account. Customer may retain read-only access, but will allow HFB to perform the Advertising Services without shared administrative rights. Customer acknowledges that this is necessary for HFB to effectively perform the Advertising Services.
d. Customer will not, for a period of one (1) year following the date on which the term of this Agreement ends, either (a) solicit for employment any employee or independent contractor employed by HFB, (b) advise or encourage any employee or independent contractor employed by HFB to terminate employment with HFB, or (c) knowingly interfere or attempt to interfere with the employment relationship between HFB and any of its employees or with any relationship between HFB and any independent contractor who performs services for HFB. Notwithstanding the foregoing, general solicitations for employment (i.e., through job boards or general advertisements) and any employment relationship established as a result of responses to general solicitations for employment shall not be deemed a violation of this Customer Covenant.
e. If Customer sells or promotes adult materials, alcohol or tobacco products, controlled substances, prescription medications or over-the-counter medications, or other age-restricted products and/or services, Customer will: (i) have age verification on its sites’ home page and in the sales process in compliance with all applicable laws and regulations; and (ii) shall not offer such products and/or services in jurisdictions in which they are prohibited or are in any way restricted; and (iii) agrees that Customer will indemnify HFB against any claims, losses, damages, fines, penalties, or the like which may be sought, assessed, or imposed as a result of Customer’s sale or promotion of such products or services.
20. CUSTOMER INDEMNIFICATION OBLIGATIONS: Customer agrees to indemnify, defend, and hold harmless HFB, its distribution partners including Promotional Partner if applicable, their respective licencors and licensees, and affiliated companies, and any of their respective officers, directors, employees, representatives, and agents (collectively the “Indemnified Parties”), from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits, or proceedings (collectively being referred to herein as a “Claim”) for, including without limitation, libel, violation of right of privacy or publicity, copyright infringement, trademark infringement, or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability, or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with Advertising Services performed on behalf of Customer, Customer’s client’s website(s) or contents therein, Customer’s conduct, acts or omissions, or any alleged or proven breach by Customer of any term, condition, agreement, representation, or warranty herein. This indemnification excludes any Claim that arises solely from the acts or omissions of an Indemnified Party, as to that party. An Indemnified Party will notify Customer of any claim, action, or demand for which indemnity is required in the reasonable opinion of Indemnified Party, and will cooperate with Customer at Customer’s expense. An Indemnified Party shall have sole discretion to accept or reject the law firm Customer chooses to defend the Indemnified Party, which firm must be experienced in defending similar claims. Customer may not settle any lawsuit or matter relating to the culpability or liability of an Indemnified Party without the prior written consent of that party. An Indemnified Party will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense. Without limiting any rights and remedies hereunder or under applicable law, HFB shall have the right to set off any liability of Customer to HFB with respect to a Claim against any amounts held on deposit with HFB by Customer.
21. LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER: Customer acknowledges and agrees that it will not hold HFB, or Promotional Partner if applicable, liable for any errors in content, omissions, consequences, damages, costs, refunds, or rebates of any kind arising from any interruption of service or other unavailability of the Internet or website(s) in which the advertisements are published for whatever reason. Customer further acknowledges and agrees that errors or mistakes in the performance of the Advertising Services, including but not limited to misspellings or miscommunications, do not create a right to refund for the Customer. Customer will give HFB timely notice and allow HFB a reasonable opportunity thereafter to cure any identified errors or omissions. HFB makes no representations or warranties relating to the results of Advertising Services, including without limitation, the number of impressions, click-throughs, or leads and any promotional effect or return on investment thereof. As HFB relies on third parties for certain data, HFB makes no guarantees regarding the accuracy, reliability, or completeness of any such data, including but not limited to usage statistics.
In no event shall HFB, or Promotional Partner if applicable, be responsible for any consequential, special, lost profits, or other damages arising under this Agreement. Without limiting the foregoing, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action, fire, flood, earthquake, power failure, riot, explosion, labor, or material shortage, carrier interruption of any kind or work slowdown.
22. SUCCESSORS AND ASSIGNS: Subject to the limitations set forth herein on assignment of this Agreement or the rights hereunder by Customer, all of the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns. Customer agrees that any of its agents, representatives, employees, or any person or entity acting on its behalf with respect to the use of the Advertising Services, shall be bound by, and shall abide by, these Terms and Conditions. Furthermore, the Order, including the terms hereof shall not be assignable by the Customer without the prior written consent of HFB.
23. CHOICE OF LAW; EXCLUSIVE VENUE: This Agreement shall be construed in accordance with the laws of the State of Utah, and the parties agree that should any dispute arise concerning this Agreement, venue shall be laid exclusively in a court of competent jurisdiction in Washington County, State of Utah. All parties expressly submit themselves to the personal jurisdiction of the state and federal courts described in this Paragraph and expressly waive the right to a trial by jury.
24. ENTIRE AGREEMENT: This document, together with the Order and any other materials, documents, or agreements incorporated by reference herein, constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect.
25. NO THIRD PARTY BENEFICIARIES: The covenants, and agreements set forth in the Order and these Terms and Conditions are solely for the benefit of and enforceable by the Parties hereto.
26. MANDATORY MEDIATION: With the exception of non-payment by the Customer, in the event of any dispute related to the terms of the Order, the parties hereto agree that no action shall be brought in Court until after the dispute has been mediated by the parties hereto. The parties agree that said mediation must include a good faith effort by both parties and said mediation shall be held at a reasonable time for both parties by a mutually agreeable mediator within the city of St. George, Utah.
27. ATTORNEYS’ FEES: In the event a dispute arises between the parties hereto, then the prevailing party in such dispute, whether or not a final decision is ultimately rendered by the court, shall be entitled to recover all costs, including all reasonable attorneys’ fees from the non-prevailing party.
28. PERSONAL GUARANTY: The individual executing the Order for and on behalf of the Customer, by accepting the Order, whether by signing the Order, verbally accepting the Order to by clicking the box indicating the Customer’s approval of the Order and these Terms and Conditions which are incorporated therein by reference, hereby expressly agrees and acknowledges, individually and not in any corporate capacity, that he/she will benefit from the Order and these Terms and Conditions and therefore as an inducement to HFB to enter into this Agreement with Customer hereby agrees to individually and personally guarantee Customer’s performance and obligations pursuant to the Order, to pay any and all costs or fees of collection incurred by HFB to enforce its rights hereunder including reasonable attorneys’ fees. HFB may choose, in HFB’s sole and absolute discretion, to seek recourse against either the Customer or the individual executing this agreement. This guaranty provision of the Agreement shall be the primary obligation of the undersigned. The undersigned agrees that HFB may proceed under the Agreement or this section providing for a guaranty separately or collectively without prejudicing or waiving any of its rights under the Agreement. It is the intent of the parties that this Guaranty is binding on the undersigned and his/her personal representatives, successors, and assigns and shall inure to the benefit of HFB and its successors and assigns.
29. NON-DISPARAGEMENT: Except in the event of a material breach by HFB in the performance of its duties and obligations under the Order or these Terms and Conditions, then the Customer expressly agrees to refrain at all times from making any comments or public statements reflecting negatively on HFB, including negative reviewed on or through any media outlet, website or any other public forum.