1.1 Terms – This Agreement shall be effective as of the time frame Customer signs up for monthly Consulting Program Service with OptixMobile represented by TRACE Agency LLC. This Contract shall be deemed to have been made at the San Diego offices of OptixMobile represented by TRACE Agency LLC as registered in the State of Delaware, United States. The terms of the Contract as stated in OptixMobile represented by TRACE Agency LLC official order constitute the entire Contract Agreement between Customer and OptixMobile represented by TRACE Agency LLC. Any variations to the Contract terms are only valid if signed by a Director of OptixMobile represented by TRACE Agency LLC. This Agreement shall be subject to the laws of the State of Delaware, USA.
1.2 Confidential Information – All data and information of a confidential nature, including know-how and trade secrets, relating to the business, the affairs and any development projects or other Products or Services of such Party are protected under this NDA (Non Disclosure Agreement) clause. Confidential Information may be communicated orally, visually, in writing or in any other recorded or tangible form. Data and information shall be considered to be Confidential Information if (a) the relevant Party has marked them as such, (b) the relevant Party, orally or in writing, has advised the other Party of their confidential nature, or (c) due to their character or nature, a reasonable person in a like position and under like circumstances would treat them as secret and confidential. Agreement to this Contract constitutes our Non Disclosure Agreement (NDA) being accepted and adhered to during the period of Engagement of OptixMobile represented by TRACE Agency LLC.
1.3 Duration – Customer accepts that the duration of Contract is binding and fixed at the agreed Service duration as specified by Customer choice of Service provided by OptixMobile represented by TRACE Agency LLC.
2. Services – OptixMobile represented by TRACE Agency LLC agrees to provide Customer with Services as described in this Contract Agreement and as elected by Customer. OptixMobile represented by TRACE Agency LLC is authorised by Customer to access FTP hosting and website login credentials in the course of fulfilling the Service to Customer.
3. Limitations on Refunds and Cancellation Fees – Customer agrees to pay OptixMobile represented by TRACE Agency LLC any and all fee(s) as billed in accordance with this Contract Agreement for the fixed Service retainer as defined in this Contract Agreement with Customer. Payments are automatically debited on a fixed basis directly through our financial gateway with frequency depending on service package chosen by Customer. Customer accepts that OptixMobile represented by TRACE Agency LLC does not have access to payment details or financial records of Customer and all transactions are managed by, and the sole liability of gateway providers STRIPE (https://stripe.com/). Should payments fail to clear on the due date Services may be delayed until the balance is paid and a reminder will be issued. Customer further agrees that, in the event of any premature termination of this Contract Agreement by Customer that no refund shall be given under any circumstances for work already conducted, being conducted or to be conducted. Customer may terminate this Consulting Contract Agreement subject to thirty (30) days notice formally issued in writing by email, and acknowledged by a named Director at OptixMobile represented by TRACE Agency LLC. All Service fees are listed in US Dollars unless defined otherwise in this Contract Agreement and exclusive of any applicable local taxes which are the sole responsibility of Customer to fulfil according to regional/territorial law. OptixMobile represented by TRACE Agency LLC undertakes to fully refund all monies paid for Services not resulting in an increase in page speed loading time, Customer undertakes to make claim within five (5) days of site optimisation Services being executed, no refund of monies will be actioned after five (5) days of Service completion.
4. Customer Responsibilities – For the purposes of providing these Services, Customer agrees: To provide OptixMobile represented by TRACE Agency LLC with FTP access to its websites and website platforms, and making changes for the purpose of optimisations or approval to go through a third party. To authorise OptixMobile represented by TRACE Agency LLC use of all Customer’s logos, trademarks, website images, etc., for use in creating informational pages and any other uses as deemed necessary by OptixMobile represented by TRACE Agency LLC for Search Engine positioning and optimisation. Where applicable Customer must supply all materials and information required by TRACE Agency LLC to complete the work in accordance with any agreed specifications. During the period of Contract, feedback from Customer may be required in order to progress to subsequent phases. It is required that a single point of contact be appointed from Customer’s side and be made available on a regular basis in order to execute Service standards. OptixMobile represented by TRACE Agency LLC will not be responsible if the work remains largely unfinished or is delayed due to Customer’s own inaction.
5. Customer Acknowledgements – Customer understands, acknowledges and agrees that: OptixMobile represented by TRACE Agency LLC has no control over the policies of Search Engines or directories with respect to the type of sites and/or content that they accept now or in the future. Customer’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.
6. Website Changes – OptixMobile represented by TRACE Agency LLC is not responsible for changes made to Customer’s website(s) by other Parties that adversely affect the page speed loading time or directory rankings of Customer’s website(s).
7. Indemnification – Customer shall indemnify and hold harmless OptixMobile represented by TRACE Agency LLC (and its subsidiaries, affiliates, officers, agents, co-branders, Contractors or other partners and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by OptixMobile represented by TRACE Agency LLC as a result of any claim, judgment, or adjudication against OptixMobile represented by TRACE Agency LLC related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Customer to OptixMobile represented by TRACE Agency LLC (the “Customer Content”), or (b) a claim that TRACE OptixMobile represented by Agency LLC’s use of the Customer Content infringes the intellectual property rights of a third Party. To qualify for such defence and payment, OptixMobile represented by TRACE Agency LLC must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control the defence and all related negotiations. OptixMobile represented by TRACE Agency LLC may record, store and use any telephone email or other communication with Customer in order to monitor and verify Contracts entered into and their terms, instructions given by Customer, the content of editorial interviews and information gathering, training and quality control. All reasonable efforts will be made by OptixMobile represented by TRACE Agency LLC to fulfil its obligations, but should OptixMobile represented by TRACE Agency LLC be prevented or delayed in carrying out any of its obligations by reason of an act of god, war, lock-out, fire, flood, delays in transit, strikes, riots, postal delay or any other unexpected or exceptional causes or circumstances beyond its control, the time for delivery shall be extended until a reasonable time after the event preventing or interfering with the due performance of OptixMobile represented by TRACE Agency LLC’s obligations has ceased, and in no circumstances is OptixMobile represented by TRACE Agency LLC to be liable for any consequential loss or damage suffered by the client as a result thereof. Customer accepts that the site speed scores as defined by Google Pagespeed Insights may not be an actual representation of post-Service performance results. OptixMobile represented by TRACE Agency LLC undertakes to optimise and show results for specific site assets most relevant to performance as deemed necessary by priority and not reflected by data presented by Google Pagespeed Insights. Customer understands and accepts that during the period of page speed optimisations being deployed to Customer site/sites there may be a period of downtime that may temporarily impact site performance.
8. Disclaimer of All Other Warranties – OptixMobile represented by TRACE Agency LLC does not warrant that Service will meet Customer’s expectations or requirements. The entire risk as to the quality and performance is with Customer except as otherwise specified in this Agreement, OptixMobile represented by TRACE Agency LLC provides its Services “as is” and without warranty of any kind. The Parties agree that (a) the limited warranties set forth in this section are the sole and exclusive warranties provided by each Party, and (b) each Party disclaims all other warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose, relating to this Agreement, performance or inability to perform under this Agreement, the content, and each Party’s computing and distribution system. if any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
9. Limited Liability – in no event shall OptixMobile represented by TRACE Agency LLC be liable to Customer for any indirect, special, exemplary or consequential damages, including any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from course of dealing or course of performance, lost profits, whether or not foreseeable or alleged to be based on breach of warranty, Contract, negligence or strict liability, arising under this Contract Agreement, loss of data, or any performance under this Contract Agreement, even if such Party has been advised of the possibility of such damages and notwithstanding the failure of essential purpose of any limited remedy provided herein. there shall be no refunds. OptixMobile represented by TRACE Agency LLC makes no warranty of any kind, whether express or implied, with regard to any third Party Products, third Party content or any software, equipment, or hardware obtained from third Parties. OptixMobile represented by TRACE Agency LLC reserves the right to refuse or terminate Service to anyone for any reason not prohibited by law. OptixMobile represented by TRACE Agency LLC reserves the right to be free from acts or threats of disruptive behaviour, abusive and/or offensive language, including intimidation, harassment and/or coercion, which involve or affect operations. Abusive communications in any form from Customer or any representative of Customer (email, phone, in person, etc.) are strictly not tolerated and will result in instant termination of Service Agreement in writing to Customer and will incur payment in full for the mandatory notice period.
10. Customer Representations – Customer makes the following representations and warranties for the benefit of OptixMobile represented by OptixMobile represented by TRACE Agency LLC: Customer accepts that all and any contact directly with employees, Contractors and representatives of OptixMobile represented by OptixMobile represented by TRACE Agency LLC is a privilege of Service as laid out in Service Agreement. By way of this Agreement Customer duly agrees not to enter into direct Engagement with any employee, Contractor, staff member or representative (past or present) of OptixMobile represented by OptixMobile represented by TRACE Agency LLC. Customer represents to OptixMobile represented by OptixMobile represented by TRACE Agency LLC and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to OptixMobile represented by OptixMobile represented by TRACE Agency LLC are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend OptixMobile represented by OptixMobile represented by OptixMobile represented by TRACE Agency LLC from any claim or suit arising from the use of such elements furnished by Customer. Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to OptixMobile represented by TRACE Agency LLC for inclusion on the website above are owned by Customer, or that Customer has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend OptixMobile represented by TRACE Agency LLC from any liability or suit arising from the use of such elements. From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees they are solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend OptixMobile represented by TRACE Agency LLC from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce.
11. Confidentiality – The Parties agree to hold each other’s Proprietary or Confidential Information in strict confidence as per this Service Agreement titled “Confidential Information”, “Proprietary or Confidential Information” shall include, but is not limited to, written or oral Contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or confidential information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving Party; (ii) was previously known to the receiving Party or rightly received by the receiving Party from a third Party; (iii) is independently developed by the receiving Party; or (iv) is subject to disclosure under court order or other lawful process. The Parties agree not to make each other’s proprietary or confidential information available in any form to any third Party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each Party’s proprietary or confidential information shall remain the sole and exclusive property of that Party. The Parties agree that in the event of use or disclosure by the other Party other than as specifically provided for in this Agreement, the non-disclosing Party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, OptixMobile represented by TRACE Agency LLC and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (1) years from the effective date of Contractual termination. Customer may request, at any time, a copy of the information we hold on Customer by writing to: email@example.com.
12. Force Majeure – Neither Party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimise the impact of the event.
13. Relationship of Parties – OptixMobile represented by TRACE Agency LLC, in rendering performance under this Agreement, shall be deemed an independent Contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Customer does not undertake by this Agreement, or otherwise, to perform any obligation of OptixMobile represented by TRACE Agency LLC, whether by regulation or Contract. In no way is OptixMobile represented by TRACE Agency LLC to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding.
14. Notice and Payment – Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated Party, mailed by certified, registered or Express mail, return receipt requested or by Federal Express or similar courier Service or electronically by email to a named Director of OptixMobile represented by TRACE Agency LLC. Either Party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
15. Jurisdiction/Disputes – This Agreement shall be governed in accordance with the laws of The United States of America under the law of the State of Delaware. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Delaware, USA including the courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept Service of process by mail, and hereby waive any jurisdictional or venue defences otherwise available to it.
16. Agreement Binding on Successors – The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
17. Assignability – Customer may not assign this Agreement or the rights and obligations thereunder to any third Party without the prior express written approval of OptixMobile represented by TRACE Agency LLC.
18. Waiver – No waiver by either Party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
19. Sever-ability – If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
20. This Agreement will constitute the entire Agreement between the Parties in relation to the subject matter of this Agreement, and supersedes all previous Agreements, arrangements and understandings between the Parties in respect of that subject matter.
21. Disputes – Customer and OptixMobile represented by TRACE Agency LLC agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through mediation. Should the Parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either Party to arbitration in the State of Delaware, USA.
22. Read and Understood – Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its Terms and Conditions as set forth in this Agreement and in this Contract as issued by OptixMobile represented by TRACE Agency LLC.
23. OptixMobile represented by TRACE Agency LLC will use the information which we collect from this website and via our email campaigns to provide Customer with any Services requested. OptixMobile represented by TRACE Agency LLC may also from time to time use Customer contact details to send the Customer information about other Services and Products provided by OptixMobile represented by TRACE Agency LLC and its partners. Any aggregate user information that we collect from this website will be used for the purpose of statistics and will not contain any personally identifying information.
24. OptixMobile represented by TRACE Agency LLC will not disclose Customer information to third Parties without consent, except when: OptixMobile represented by TRACE Agency LLC reserves the right to send information to companies that work on the behalf of OptixMobile represented by TRACE Agency LLC to provide a Product or Service for Customer; (unless stated otherwise, these companies do not have any right to use the personally identifiable information we provide to them beyond what is necessary to assist OptixMobile represented by TRACE Agency LLC); or we need to share Customer information to provide the Product or Service as requested; or to respond to any legitimate request by the authorities, or legal process, with which OptixMobile represented by TRACE Agency LLC must comply.