This agreement is made at the time of purchase between MessageKey LLC, an Arizona based company located at 4400 N. Scottsdale Rd. Suite 9850, Scottsdale, AZ. 85251 (“MESSAGEKEY”) and your company (“Client”)
In consideration of the mutual covenants set forth in this Agreement, Client and MESSAGEKEY hereby agree as follows:
Development of PPC Campaign and Optimization Services.
MESSAGEKEY agrees to create, install, manage, develop and employ custom PPC Advertising tactics according to the terms listed on Exhibit A attached hereto.
MESSAGEKEY agrees to develop the PPC Campaign pursuant to the Specifications set forth in Exhibit A.
3. Delivery Dates and Milestones.
MESSAGEKEY will use reasonable diligence in the development of the PPC Campaign and Strategy and endeavor to deliver to client all deliverables and milestones on a monthly basis. Client acknowledges, however, that this delivery deadline and the other payment milestones are estimates, and are not required delivery dates. MESSAGEKEY will retain all documents, source code, keyword lists and other assets employed or created for client during the execution of this agreement. Client will receive only the output formats of MESSAGEKEY’s work where applicable. The output is to be used only within the scope of the project as outlined in Exhibit A. Client shall retain all of its intellectual property rights in any text, images or other components it owns and delivers to MESSAGEKEY for use in the PPC Campaign and Strategy rendered under this Agreement.
4. Services Provided.
PPC Campaign and Optimization services are intended to provide client with preferential positioning in selected paid search engine inclusion and report results on an ongoing and timely basis. Some of the PPC Campaign and Optimization tactics include:
4.1 PPC Keyword Selection Services.
MESSAGEKEY will manage a list of keywords and phrases relevant to client’s desired search terms based upon
4.2 PPC Campaign Components, Implementation, Ongoing Research and Reporting Services.
Advertising Copy. MESSAGEKEY shall write advertising copy that is designed to drive high quality traffic to client web site(s) based upon the various keywords identified and selected in section 4.1. Click-through rates shall be tracked and copywriting shall be adjusted based on these reports.
Campaign Budgeting. MESSAGEKEY and client shall agree upon an initial budget for all PPC efforts.
Campaign Creation and Implementation. MESSAGEKEY shall set up independent PPC accounts in client name with all agreed-upon PPC Advertising Networks and subject to the agreed-upon budgets. MESSAGEKEY shall create various campaigns with varying advertising copy, keywords and demographic targeting based on the MESSAGEKEY’s research. Campaigns may differ in copywriting and keyword usage based upon the individual PPC advertiser.
MESSAGEKEY may create special Web Pages (“landing pages”) to which all click-through actions. Creative services rendered under this Agreement may be subject to separate Web Design and Development fees and terms and conditions.
Monitoring and Reporting: MESSAGEKEY shall monitor and manage client’s PPC campaign and monitor CPC (cost per click) rates. Bids may be adjusted in order to maximize high quality traffic. Non-performing keywords may be removed from the PPC campaign based on the results of this reporting. Reports shall be provided to client on a monthly basis.
4.3 ROI and Conversion Tracking Software.
In the event that it is deemed necessary and vital to install ROI tracking or other metric measurement software, MESSAGEKEY will monitor and configure software packages (“the Installation” or the “Software”). MESSAGEKEY shall not be responsible for keeping copies, back-ups or any other form of the Software after turning over the original copies to client. MESSAGEKEY will not maintain the Installation, updates, or any daily tasks required for the maintenance of the Software under this Agreement.
MESSAGEKEY will not manage or maintain copies of licenses for any of the software packages or installations under this Agreement. All licenses for software installations will be turned over to client upon execution of this Agreement.
4.4 Service Disclaimers.
Client acknowledges the following with respect to services:
a) MESSAGEKEY accepts no responsibility for policies of PPC Advertising Networks, third-party search engines, directories or other web sites (“Third-Party Resources”) that MESSAGEKEY may submit to with respect to the classification or type of content it accepts, whether now or in the future. Client’s web site or content may be excluded or banned from any Third-Party Resource at any time. Client agrees not to hold MESSAGEKEY responsible for any liability or actions taken by Third-Party Resources under this Agreement.
b) Client acknowledges the nature of many of the resources MESSAGEKEY may employ under this Agreement are competitive in nature. MESSAGEKEY does not guarantee position, consistent positioning, or specific placement for any particular PPC keyword, phrase or search term. Client acknowledges that MESSAGEKEY’s past performance is not indicative of any future results client may experience.
c) Client acknowledges that PPC Advertising may be subject to the individual advertising network’s policies and procedures. Each edit or change made to any resources employed by MESSAGEKEY may repeat these inclusion times.
d) Client acknowledges that any of the PPC advertising networks; search engines, directories or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time.
e) Client acknowledges that PPC advertising networks or search engines may drop listings from its database for no apparent or predictable reason. MESSAGEKEY shall re-submit resources to the search engine based on the current policies of the search engine in question and whether pay inclusion programs are being used.
f) MESSAGEKEY will endeavor to make every effort to keep client informed of any changes that MESSAGEKEY is made aware of that impact any of the PPC Campaign and Strategy and the execution thereof under this Agreement. Client acknowledges that MESSAGEKEY may not become aware of changes to third-party resources, industry changes or any other changes that may or may not affect PPC campaign.
g) Client acknowledges that MESSAGEKEY cannot guarantee the exact placement of client’s advertising; its availability or availability related to the funds in the client’s account. Client is solely responsible for all advertising fees and must maintain adequate funds in any third-party accounts in order to maintain inclusion in these resources.
For all of MESSAGEKEY’s services under this Agreement, client shall compensate MESSAGEKEY, in cash, pursuant to the terms of Exhibit A attached hereto. In the event client fails to make any of the payments referenced in Exhibit A by the deadline set forth in Exhibit A, MESSAGEKEY has the right, but is not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement, (2) remove equipment, software, services or resources owned by MESSAGEKEY, whether leased to client by MESSAGEKEY or not and any MESSAGEKEY personnel or staff from client location(s), or (3) bring legal action.
Client and MESSAGEKEY acknowledge and agree that the Specifications and all other documents and information related to the development of PPC Campaign (the “Confidential Information”) will constitute valuable trade secrets of MESSAGEKEY. Client shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without MESSAGEKEY’s prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.
7. Limited Warranty and Limitation on Damages.
Client waives any warranty, express or implied. Client waives any claim for damages, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to MESSAGEKEY as set forth in Exhibit A attached hereto.
8. Independent Contractor.
MESSAGEKEY shall be retained as independent contractor. MESSAGEKEY will be fully responsible for payment of its own income taxes on all compensation earned under this Agreement. Client will not withhold or pay any income tax, social security tax, or any other payroll taxes on MESSAGEKEY’s behalf. MESSAGEKEY understands that it will not be entitled to any fringe benefits that client provides for its employees generally or to any statutory employment benefits, including without limitation worker’s compensation or unemployment insurance.
Client agrees to make available to MESSAGEKEY, for MESSAGEKEY’s use in performing the services required by this Agreement, such items of hardware and software as client and MESSAGEKEY agree are reasonably necessary for such purpose. Client agrees to make available any access to services deemed necessary by MESSAGEKEY to fulfill its obligations under this Agreement.
10. General Provisions.
10.1 Entire Agreement.
This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by both parties hereto.
10.2 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the state of Arizona. Exclusive jurisdiction and venue shall be in the State of Arizona.
10.3 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of client and MESSAGEKEY and their respective successors and assigns, provided that MESSAGEKEY may not assign any of its obligations under this Agreement without client’s prior written consent.
The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
10.5 Good Faith.
Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.
10.6 No Right to Assign.
Client has no right to assign, sell, modify or otherwise alter this Agreement, except upon the express written advance approval of MESSAGEKEY, which consent can be withheld for any reason.
10.7 Right to Remove Resources.
In the event client fails to make any of the payments set forth on Exhibit A within the time prescribed in Exhibit A, MESSAGEKEY has the right to remove any PPC campaign under MESSAGEKEY control until payment is paid in full, plus accrued late charges of 2% per month.
Client warrants that everything it provides MESSAGEKEY to employ in the PPC campaign is legally owned or licensed to client. Client agrees to indemnify and hold MESSAGEKEY harmless from any and all claims brought by any third party relating to any aspect of the PPC campaign, including but without limitation, any and all demands, liabilities, losses, costs and claims including attorney’s fees arising out of injury caused by client’s products/services, material supplied by client, copyright infringement, and defective products sold via the PPC campaign. Client agrees to indemnify MESSAGEKEY from responsibility for problems/disruptions caused by third-party services that client may use, such as merchant accounts, shopping carts, shipping, hosting services, real-time credit card processing and other services that relate to the ownership and operation of the PPC campaign.
10.9 Use of Material for Promotional Purposes.
Client grants MESSAGEKEY the right to use its work in producing the PPC campaign for promotional purposes and/or to cross-link it with other advertising developed by MESSAGEKEY. Client grants MESSAGEKEY the right to list reference or otherwise identify client as a client of MESSAGEKEY in MESSAGEKEY’s advertising and marketing.
10.10 No Responsibility for Loss.
MESSAGEKEY will have no responsibility for any third party disrupting, intruding or otherwise copying files in part or in whole on all or any part of the work performed for the PPC campaign. MESSAGEKEY is not responsible for any down time, lost files, improper links or any other loss that may occur in the operation of the PPC campaign under this Agreement.
10.11 Right to Make Derivative Works.
MESSAGEKEY will have the exclusive rights in making any derivative works from any of its work, practices, coding, programming or other work in regards to the PPC campaign.
10.12 Attorney’s Fees.
In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorney’s fees and costs, including expert witness fees.
10.13 Identification of MESSAGEKEY.
Client agrees that MESSAGEKEY identification may be annotated, and remain within the code or on the web site as the authors. Client also agrees to put MESSAGEKEY’s copyright notices on the PPC campaign reports and the relevant content therein.
10.14 Transfer of Rights.
In the event MESSAGEKEY is unable to continue maintenance of the PPC campaign services, non-exclusive rights to the PPC campaign will be granted to client. Transfer of Rights does not apply to non-transferable third-party licenses and proprietary material owned by the developers.
Some of the tactics MESSAGEKEY will utilize as part of it’s service offering are as follows:
– Individual ads monitored and poor performers replaced with new ad copy
– Keyword performance analyzed and poor performing keywords eliminated
– Keyword opportunities identified based on ad and keyword performance
– Ad groups created or modified based on ad and keyword performance
– Ad and keyword bids modified to maximize high quality traffic
– Recommendations made to improve landing page performance
– Competitor campaigns reviewed to identify keywords, ad and landing pages opportunities
– Monthly statistics and account changes report sent
– Phone call tracking and recording for analytics purposes
By purchasing our PPC services the client understands that MESSAGEKEY may not execute all of these tactics, and will use its best judgment which tactics to utilize at our discretion. Client Agrees to pre-pay MESSAGEKEY for each month in advance and will be automatically billed by credit card. The amount paid each month will be based on the specific PPC package the Client purchased at signup.