GENERAL TERMS OF SERVICE
Last updated September 23, 2024
These Terms of Service are entered into by and between Profit Solutions Pro, Inc., a corporation incorporated under the laws of the State of California, registered at 118 Metropole Street, Suite 1935, Avalon, CA 90704, hereinafter referred to as “Profit Solutions” and the individual or entity that accepts these terms and conditions (the “Client” or “you” or “your”). The Agreement comes into effect when the Client accepts these Terms of Service by checking the associated box upon checkout.
By accepting these Terms of Service, the Client acknowledges that they have read, understood, and agreed to all terms and conditions outlined herein, and the Parties hereby commit to collaborate in achieving digital marketing success.
These Terms of Service were most recently updated on September 23, 2024.
BY CHECKING THE REQUIRED CHECKBOX, YOU ACCEPT AND AGREE THAT THESE TERMS WILL BIND YOU. BY ENTERING INTO THESE TERMS OF SERVICE, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE CONSENTING TO RESOLVE ANY DISPUTES, CLAIMS, OR CONTROVERSIES THAT MAY ARISE PURSUANT TO THIS AGREEMENT THROUGH ARBITRATION AS OUTLINED IN THE ARBITRATION CLAUSE CONTAINED HEREIN. PLEASE CAREFULLY REVIEW THE ARBITRATION CLAUSE PROVIDED TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS REGARDING DISPUTE RESOLUTION. YOUR ACCEPTANCE OF THESE TERMS OF SERVICE SIGNIFIES YOUR ACKNOWLEDGMENT AND CONSENT TO THE ARBITRATION CLAUSE.
- Definitions and Interpretations
- In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
Agreement means these Terms of Service together with the required written legal agreement, named Consulting Services Agreement, for the provision of Services that will be provided to Client for signature;
Profit Solutions means Profit Solutions Pro, Inc., a corporation incorporated under the laws of the State of California, registered at 118 Metropole Street, Suite 1935, Avalon, CA 90704;
Force Majeure means any cause beyond a Party’s reasonable control, including, but not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the reasonable control of the Party in question;
Intellectual Property Rights means
(a) any and all rights in any patents, trademarks, servicemarks, registered designs, applications (and rights to apply for any of those rights), trade, business and company names, internet domain names, e-mail addresses, unregistered trademarks and servicemarks, copyrights, database rights, know-how, trade secrets, rights in designs and inventions, and goodwill;
(b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a);
(c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and
(d) the right to sue for past infringements of any of the foregoing rights;
Minimum Term means the minimum required term the Parties are entering into the Agreement for;
Parties means Profit Solutions and the Client collectively;
Party means each of Profit Solutions or the Client individually;
Plan(s) refers to plans provided by Profit Solutions. Each Plan may encompass various tiers or options, each associated with its own pricing structure, allocation of services, and payment terms. Plans may differ in terms of features, usage limitations, and pricing, and they may be subject to modification or termination in accordance with these Terms of Service, and the Client may select one or more Plan(s) to their satisfaction;
Services means those services Profit Solutions is to carry out for the Client as specified in Clause 3 hereof and in accordance with the specific terms of the package selected by the Client;
Term means the period from the date the Agreement comes into effect until the termination of this Agreement in accordance with Clause 10 hereof.
1.2 Unless the context otherwise requires, each reference in this Agreement to a Clause or sub-Clause is a reference to a Clause of this Agreement.
1.3 The headings used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.
1.4 Words signifying the singular number shall include the plural and vice versa.
1.5 References to any gender shall include any other gender.
- General Terms
2.1 Applicability. These Terms of Service apply to all Services offered by Profit Solutions to the Client, except where expressly indicated to the contrary.
2.2 Capacity. The Client may not use the Services nor accept these Terms of Service if the Client is not of legal age or does not have the required mental capacity to form a binding contract with Profit Solutions, or if the Client does not have the required legal capacity to bind the entity which they are representing to a binding legal agreement.
2.3 Acceptance. The use of the Services requires the unconditional acceptance of the applicability of these Terms of Service. It is the Client’s responsibility to read and understand the Terms of Service. If the Client does not agree to these Terms of Service, do not use the Services.
2.4 Client Terms. All terms and conditions maintained by the Client that are contrary to these Terms of Service are hereby rejected and therefore do not apply to the use of the Services.
2.5 Privacy Policy. Any personal data submitted by the Client to Profit Solutions will be governed by the Privacy Policy.
- The Services and Guarantees
3.1 Services. Profit Solutions hereby agrees to perform certain services as selected by Client. These Services may include any of the following, or a combination thereof: (i) AI & Automation; (ii) Digital Marketing; (iii) Online Presence; (iv) Financial Management; or (v) Cost Optimization. A full overview of all our Services can be found on the website.
3.2 Guarantees. Several of the Profit Solutions Plans and other Services are subject to limited guarantees that apply solely to that Plan or Service, as set out in more detail below in sub-Clauses 3.3-3.5.
3.3 Swift Site Plan Guarantee. For Clients that have selected the Swift Site Plan, Profit Solutions guarantees that the website created under that Plan by Profit Solutions shall run at a mobile and desktop with a Google PageSpeed score of 90 or better. Should Profit Solutions fail to meet the guarantee, it will offer its Services exclusively associated with its Swift Site Plan temporarily free of charge until the score of 90 or better is reached, after which payments shall be reinstated. This Swift Site guarantee shall be measured from the moment the website goes live on Profit Solutions’ servers.
3.4 Swift Boost Plan Guarantee. For Clients that have selected the Swift Boost Plan, Profit Solutions guarantees that the website created under that Plan by Profit Solutions shall run at a mobile and desktop with a Google PageSpeed score of 90 or better. Should Profit Solutions fail to meet the guarantee, it will offer its Services exclusively associated with its Swift Boost Plan temporarily free of charge until the score of 90 or better is reached, after which payments shall be reinstated. This Swift Boost guarantee shall be measured from the moment the website goes live on Profit Solutions’ servers.
3.5 Rank Rocket (SEO) Guarantee.
(a) The following definitions shall apply to this sub-Clause 3.5. “Approved Keywords” shall refer to the keywords selected by the Client and approved by Profit Solutions; “Service Areas” shall refer to the geographical locations where Client performs its business services; and “Google 1st Page Ranking” shall mean a keyword ranking within the first ten (10) organic or map results on Google search engine results pages
(b) For Clients that have selected the Rank Rocket Plan, Profit Solutions guarantees that within 6 months of the Client and Profit Solutions agreeing in writing to certain approved keywords, that Profit Solutions shall have them rank on the first page of Google Organic or Google Maps. Should Profit Solutions fail to meet the guarantee, it will offer its Services associated exclusively with the Rank Rocket Plan temporarily free of charge until the described performance benchmarks have been achieved, after which payments shall be reinstated.
(c) The performance guarantee for the Rank Rocket Plan described herein shall become immediately null and void if the Client fails to meet their obligations under Clause 4 hereof. The Approved Keywords must remain unchanged for the guarantee to apply.
(d) For any Approved Keyword that includes the phrase ‘near me’, Profit Solutions shall consider the keyword as ranking on the Google 1st Page if any of the Client’s specified Service Areas achieve a Google 1st Page Ranking for the keyword phrase without the ‘near me’ modifier. Each Service Area that achieves a Google 1st Page Ranking for the keyword phrase without the ‘near me’ modifier shall be counted as a separate Google 1st Page Ranking for the purpose of fulfilling this guarantee under sub-Clause 3.5.
3.6 Social Spark Plan Guarantee. For Clients that have selected the Social Spark Plan, Profit Solutions guarantees to achieve lower cost-per-lead results than Facebook estimated averages specific to your industry and market within six (6) months. Should Profit Solutions fail to meet the guarantee, it will offer its Services exclusively associated with its Social Spark Plan temporarily free of charge until described performance benchmark has been achieved.
3.7 BizBuddy AI Plan Guarantee. For Clients that have selected the BizBuddy AI Plan, Profit Solutions guarantees that Client achieves an extra $10,000 in profits through either an increase in revenues and/or a decrease in expenses within 90-days of enrollment. Should Profit Solutions fail to meet the guarantee, it will offer a one-time credit of $500 towards any of its Services. Client is required to notify Profit Solutions and provide financial proof of same within 180-days of enrollment; otherwise said guarantee shall become immediately null and void.
3.8 No Other Guarantee. For the avoidance of doubt, none of the other Plans offered by Profit Solutions shall be subject to any form of guarantee of any kind. As such, the performance, results, or outcomes associated with these Plans are not warranted or guaranteed in any way.
4. Client Obligations and Service Terms
4.1 Provision of Material. The Client shall ensure that all data, tools, and information, of which Profit Solutions has stated it is required for the performance of the Services, or of which the Client should reasonably understand it to be necessary for such performance, will be provided to Profit Solutions in a timely, complete, and correct manner.
4.2 Access and Permissions. The Client shall ensure that Profit Solutions has necessary access and permissions to relevant digital assets and accounts to carry out the Services.
4.3 Feedback. The Client shall provide constructive feedback to Profit Solutions regarding the performance of the Services and promptly communicate any concerns or issues that may arise during the course of the Term. Feedback should be specific and actionable to ensure timely adjustments and improvements to the service delivery.
4.4 Involvement. The Client acknowledges that the ultimate success of the Services is a collaborative effort, and their active involvement and commitment are essential to achieving the desired outcomes. This may include, but is not limited to, participating in regular meetings, providing timely responses, and making decisions in a timely manner.
4.5 Legal Requirements. It is the Client’s sole and exclusive responsibility to ensure that all legal requirements for the Client’s business are met. This includes, but is not limited to (i) ensuring claims on advertisements and graphics are true, accurate and legal; (ii) compliance with financial regulations and data protection laws; and (ii) that no third-party Intellectual Property Rights are violated by any materials and/or content provided by the Client. Profit Solutions shall not be responsible for reviewing, verifying, or ensuring the legality, accuracy, or compliance of any materials, content or actions undertaken by the Client. Profit Solutions does not provide legal, technical, or regulatory advice and shall not be responsible for ensuring compliance with any laws, regulations, or guidelines applicable to the Client’s business or industry. The Client acknowledges and agrees that the ultimate responsibility to ensure compliance with all applicable laws rests solely with the Client, and that any advice, recommendations, or strategies provided by Profit Solutions do not substitute for the Client’s own due diligence or legal compliance obligations. Profit Solutions shall not be liable for any legal, financial, or regulatory repercussions arising from the Client’s failure to comply with applicable laws or regulations.
4.6 Approvals. Profit Solutions and Client understand and agree that any Client delay in providing Profit Solutions with express approval regarding creative content such as writing, graphical content, ads, or the like, can prevent, delay, or otherwise hinder Profit Solutions’ contractual performance of the Agreement. Therefore, Profit Solutions and Client agree to all of the following:
a. Profit Solutions may publish any content on behalf of Client that Profit Solutions reasonably believes will provide benefit to Client with Client’s express approval; and
b. Before Profit Solutions publishes any content, Profit Solutions shall request that Client promptly approve said content, either orally or in writing; and
c. If Client fails to provide Profit Solutions with written disapproval of content within 48-hours of Profit Solutions’ content submittal request, Client’s approval shall be imputed automatically and immediately, and deemed “tacitly approved”; and
d. Client and Profit Solutions agree that Profit Solutions is permitted to publish any tacitly approved content as if it were expressly approved by Client.
4.7 Delays. If any delay is still caused due to Client’s lack of a timely or accurate feedback and/or provision of details and/or content, Profit Solutions shall not be liable or responsible for that delay. Any Services not performed during a Term due to such a delay shall not roll-over to a subsequent Term where applicable.
5. Subscriptions & Payments
5.1 Subscriptions. The Client acknowledges that, upon the completion of any applicable Minimum Term, the Services shall operate on a month-to-month subscription basis, unless agreed otherwise in writing. Some Services and/or Plans may not be subject to a Minimum Term, as specified in the Agreement. Subscription renewal occurs automatically on a monthly basis, unless the Client cancels the subscription in accordance with the cancellation policy outlined in these Terms of Service. The Client agrees to monitor their subscription status and is solely responsible for managing their subscription including cancellations or modifications.
5.2 Initial Fees. Certain Services may require an initial setup fee or onboarding fee, which will be detailed in the Agreement. The Client agrees to pay any applicable initial fees to Profit Solutions as specified in writing. These fees are separate from and in addition to any recurring fees and are due upon execution of the Agreement. Failure to pay the initial fees may result in delays in the commencement of the Services or termination at Profit Solutions’ sole and absolute discretion.
5.3 Recurring Fees. In consideration for the Services to be performed by Profit Solutions, Client agrees to pay Profit Solutions on a recurring monthly basis. The first payment due shall be the pro-rated fee for the remainder of the current month during which the Client enters into the Agreement. Each subsequent full monthly payment shall be due on the first month of every month.
5.4 Invoices. Invoices and billing statements shall be provided electronically to the email address provided by the Client.
5.5 Enforcement of Payment. Notwithstanding anything to the contrary, in the event legal action is required to enforce the payment terms of the Agreement, Profit Solutions shall be entitled to collect from Client any judgment or settlement sums due plus reasonable attorneys’ fees, court costs and other expenses incurred by Profit Solutions for such collection action.
5.6 Payment Authorization. By executing this Agreement, the Client is authorizing Profit Solutions to automatically charge the credit/debit card provided by the Client, and to continue charging the credit/debit card at the agreed upon intervals during the Term of this Agreement. This applies to all fees listed and/or described in this Agreement. The Client hereby agrees to maintain all such credit/debit card information up-to-date and complete and understands that refusal by the payment provider of amounts due and owning under this Agreement, may result in (i) Profit Solutions ceasing to provide the Services until all amounts due have been received by Profit Solutions, and/or (ii) a material breach of this Agreement (without prejudice to any other remedies available to Profit Solutions under applicable law).
5.7 Electronic Funds Transfer. The Client shall pay Profit Solutions, and authorizes Profit Solutions to electronically deduct, any and all fees arising out of this Agreement using ELECTRONIC FUNDS TRANSFER (“EFT”) according to the terms of the Agreement, and from the Client’s account.
5.8 Restrictions on Chargebacks. The Client acknowledges and agrees that chargebacks shall only be initiated under this Agreement in cases where Profit Solutions has materially breached its obligations as defined herein or in the event of fraudulent transactions. Chargebacks initiated without valid grounds or for reasons unrelated to a material breach shall be considered a breach of this Agreement by the Client.
5.9 Consequences of Unwarranted Chargebacks. In the event the Client initiates an unwarranted chargeback without valid grounds, the following consequences shall apply:
a. Immediate Suspension of Services. Profit Solutions reserves the right to immediately suspend all Services, until the chargeback dispute is resolved to Profit Solutions’ satisfaction.
b. Chargeback Costs. The Client shall be responsible for covering all costs incurred by Profit Solutions in association with the chargeback, including but not limited to administrative, legal, and banking fees.
c. Termination of Agreement. Profit Solutions may, at its sole discretion, terminate this Agreement if the Client initiates unwarranted chargebacks, with all outstanding fees and charges becoming immediately due and payable.
5.10 Refunds. Profit Solutions and the Client expressly agree that there are no refunds of any kind under any circumstances. Furthermore, Profit Solutions and Client expressly agree that any performance issues shall only be rectified through a billing credit applied to future Monthly Fees payments, or alternatively, the remediation of any such deficient performance at no additional cost to the Client.
5.11 Late Fees. Late payments by Client shall be subject to an interest rate of 1.5 % per month from the due date until the amount is paid, calculated on a daily basis. Any EFT payment returned or rejected by Client’s bank shall be subject to a $40 non-sufficient funds fee payable by Client to Profit Solutions. Profit Solutions has the right to discontinue Services without notice to Client if any payment becomes delinquent by more than 7 days, at its sole and absolute discretion.
6. Confidentiality
6.1 Confidential Information. For the purposes of this Agreement
“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such).
6.2 Confidentiality Obligations. Each Party undertakes that, except as provided by this Clause 6 or as authorized in writing by the other Party, it shall, at all times during the period of this Agreement and after its termination:
a. use reasonable endeavours to keep confidential all Confidential Information;
b. not disclose any Confidential Information to any other person;
c. not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;
d. not make any copies of, record in any way or part with possession of any Confidential Information; and
e. ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of this Clause 6.
6.3 Permitted Disclosure. Either Party may:
a. disclose any Confidential Information to: (i) any sub-contractor or supplier of that Party; (ii) any governmental or other authority or regulatory body; or (iii) any employee or officer of that Party or of any of the aforementioned persons, to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case subject to that Party first informing the person in question that the Confidential Information is confidential and having the third person commit to confidentiality obligations equal to those in this Agreement; and
b. use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it either is at the date of this Agreement or at any time after that date it becomes public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge; an
c. use or disclose any Confidential Information or any part thereof which can be shown by that Party, to the reasonable satisfaction of the other Party, to have been known to that Party prior to such disclosure.
6.4 Survival. The provisions of this Clause 6 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
7. Intellectual Property
7.1 Assignment of Rights. Profit Solutions assigns to the Client its entire right, title and interest in anything created or developed by the Customer for the Client under this Agreement (the “Work Product”), subject to certain limitations as specified below:
a. For all Work Product, right, title, and interest shall only be transferred and assigned to Client if (i) the Client has met and continues to meet all payment obligations under the Agreement; and (ii) the Client uses the Work Product only for its intended purposes.
b. For Clients who have purchased the Swift Site Plan, the Work Product shall not be transferred as specified under this sub-Clause 7.1 until the Client has successfully made 36 monthly hosting payments to Profit Solutions, in the amount specified on the Agreement.
7.2 Profit Solutions’ Reusable Materials. Profit Solutions owns outright, and/or owns a license to use and sublicense, various materials in existence before this Agreement’s date of execution (“Profit Solutions’ Materials”). Profit Solutions may include Profit Solutions’ Materials in the work performed under this Agreement. Profit Solutions retains all rights, title, and interest, including all copyrights, patent rights, and trade secret rights, in Profit Solutions’ Materials.
7.3 License. Profit Solutions grants the Client a perpetual, royalty-free, nonexclusive, non-transferable, non-sublicensable license to use any of Profit Solutions’ Materials incorporated into the work performed by Profit Solutions under this Agreement, for non-commercial purposes.
8. Restrictive Covenants
8.1 Non-Solicitation of Profit Solutions’ Employees. Profit Solutions and Client agree Profit Solutions has invested time, energy, and money into the training of its Customer Success Managers and Profit Coaches relating to the provided Services. Consequently, Profit Solutions and Client agree that while this Agreement is in effect and for the period of not less than one (1) year thereafter, in consideration of the Services provided by Profit Solutions hereunder, Client shall not, directly or indirectly, for himself or as principal, agent, independent contractor, service provider, director, officer, member, or employee of any other person, firm, corporation, partnership, company, association, business or other entity, solicit, attempt to contract with, or enter into a contractual or business relationship of any kind with any of Profit Solutions’ employees and/or contractors that the Client has been in contact with during the Term of the Agreement. Both Profit Solutions and Client hereto acknowledge and agree that each individual breach of this sub-Clause 8.1 shall give rise to liquidated damages in the amount of $10,000 per occurrence, and these liquidated damages shall not be considered penalties. Further, these damages may be charged by Profit Solutions without prejudice to any other remedy available to it under applicable law. Both Profit Solutions and Client further acknowledge that (i) the amount of loss or damages likely to be incurred by Profit Solutions is incapable or is difficult to precisely estimate, (ii) the amounts specified above bear a reasonable proportion and are not plainly or grossly disproportionate to the probable loss likely to be incurred by Profit Solutions, and (iii) both Profit Solutions and Client are sophisticated business parties and have negotiated this Agreement at arm’s length.
9. Limitation of Liability
9.1 Warranty. The Client must report any deficiencies in Profit Solutions’ Services to Profit Solutions in writing within 30-days of performance to receive warranty remedies. Software bugs are to be expected. Client’s exclusive remedy shall be the re-performance of Profit Solutions’ services. If Profit Solutions is unable to re-perform the services, Client shall be entitled to recover the fees paid to Profit Solutions for the deficient services if so permitted under applicable law. Profit Solutions warrants to the Client that the Services will be of the kind and quality designated. For a more specific overview of Profit Solutions’ guarantees, please see Section 3 herein.
THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE PRIOR TO THE AGREEMENT. Profit Solutions GIVES NO WARRANTY AND/OR GUARANTEE OF ANY PARTICULAR RESULT OR OUTCOME OF THE SERVICES UNDER THIS AGREEMENT WITH THE EXCEPTION OF THE GUARANTEES SPECIFIED IN SECTION 3 HEREIN.
9.2 Limited Liability. Profit Solutions’ total liability to Client under the Agreement for damages, costs and expenses shall not exceed the total compensation received by Profit Solutions under this Agreement during the past 6 months of the Agreement.
IN NO EVENT SHALL PROFIT SOLUTIONS, ITS AFFILIATES, SUBSIDIARIES, OWNERS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, VENDORS, SUCCESSORS, AND ASSIGNS, BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES, OR ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR WITH ANY DELAY OF OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT, INFORMATION, SOFTWARE, AND/OR PRODUCTS OBTAINED THROUGH THE SERVICES, THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, ITEMS, OR OTHERWISE, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY THROUGH THE SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FURTHER, SUCH PARTIES SHALL NOT BE LIABLE, REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE CONTENT, INFORMATION OR SERVICES PROVIDED BY OR KNOW-HOW OR OTHER INFORMATION CONTAINED WITHIN THE SERVICES.
9.3 Indemnification. Client hereby agrees to indemnify and hold harmless Profit Solutions, and its directors, subsidiaries, officers, and contractors, from and against any and all claims, demands, and actions, and any liabilities, damages, or expenses incurred resulting from the Client’s breach of this Agreement or applicable law, including reasonable attorneys’ fees, arising out of or relating to this Agreement.
9.4 Force Majeure. Neither Party shall be held responsible for any delay or failure in performance under this Agreement caused by Force Majeure. The affected Party shall promptly notify the other Party in writing of the occurrence of a Force Majeure event, specifying the nature and expected duration of the event. The affected Party shall make all reasonable efforts to mitigate the impact of the Force Majeure event on its performance under this Agreement. The time for performance of any affected obligations under this Agreement shall be extended for a period equal to the duration of the Force Majeure event, provided that the affected Party continues to use reasonable efforts to perform its obligations.
10. Term
10.1 Term of Agreement. This Agreement will become effective upon the Effective Date. All Agreements shall be subject to a Minimum Term, as specified by the Parties in writing, during which the Agreement may not be terminated the Client. If the Client terminates this Agreement during the Minimum Term, or if Profit Solutions has to terminate the Agreement during the Minimum Term due to the Client (a) breaching this Agreement or applicable law; or (b) otherwise behaving or acting in a way that makes it impossible for Profit Solutions to continue to provide its Services hereunder, the Client shall remain liable to pay the full fees that would otherwise have been paid during the entire Minimum Term, had the Agreement not been terminated.
10.2 Termination By Client. Upon expiry of the Minimum Term, Client must provide a 30-day written notice of its intention to terminate the Agreement, unless another notice term has been specified as part of a Plan on the commencement date of the Agreement (as evidenced in writing in the electronic services receipt to be sent to the Client after sign-up). Upon expiry of the 30-day notice period, no additional charges shall be incurred by the Client. The Client is required to give notice in writing to noticeofcancellation@profitsolutions.com.
10.3 Termination For Cause by Profit Solutions.
a. Material Breach. Profit Solutions may terminate this Agreement immediately in the event that the Client commits a material breach of any provision of this Agreement and fails to remedy such breach within thirty (30) days of receiving written notice specifying the breach.
b. Non-Payment. Profit Solutions reserves the right to suspend or terminate services in the event of the Client’s failure to make timely payments as outlined in this Agreement. Termination due to non-payment shall not relieve the Client of its payment obligations for services rendered or fees incurred prior to the termination date, which shall include all fees due during the Minimum Term.
10.4 Termination Without Cause by Profit Solutions. Profit Solutions may terminate this Agreement without cause by providing written notice to the Client with at least thirty (30) days’ notice prior to the intended termination date. In the event of such termination, the Client shall be responsible for all fees and charges incurred up to the date of termination, including any unpaid fees for services already rendered.
10.5 Consequences of Termination.
a. Ceasing the Services. Upon termination of this Agreement for any reason, Profit Solutions shall promptly cease all services and relinquish control of the Client’s digital assets, including but not limited to advertising accounts, campaign data, and creative materials, in accordance with the terms of this Agreement.
b. Asset Transfer: The Client may request the transfer of certain digital assets, subject to a reasonable fee, provided that all outstanding fees and charges are settled in full. Profit Solutions shall cooperate in facilitating the transfer of assets to the Client or its designated representative.
10.6 Survival of Provisions. Termination shall not affect any provisions of this Agreement that, by their nature, are intended to survive termination, including but not limited to confidentiality, intellectual property rights, and payment obligations.
11. Miscellaneous
11.1 Sub-Contractors. Profit Solutions has the right to engage subcontractors to perform the Services under the Agreement, either whole or in part. These third parties will enter into relevant confidentiality obligations.
11.2 Relationship. Profit Solutions and the Client are deemed to be independent contractors of one another and nothing in this Agreement suggests that the Client and Profit Solutions intend to create a joint venture, partnership, agency, or employee/employer relationship.
11.3 Entire Agreement. This Agreement constitutes the entire understanding between the Parties regarding the subject matter herein and supersedes all prior or contemporaneous agreements, representations, warranties, and understandings, whether oral or written.
11.4 Waiver. The failure of either Party to enforce any right or provision of this Agreement shall not constitute a waiver of that right or provision unless acknowledged and agreed to in writing.
11.5 Assignment. The Client may not assign this Agreement without the prior written consent of Profit Solutions.
11.6 Amendments. Profit Solutions reserves the right to amend these Terms of Service at any time. Amendments may be made for various reasons, including changes in the law, improved services, or operational considerations. Profit Solutions shall provide written notice to the Client of any changes and their effective date. Upon receiving notice of the proposed amendments, the Client has a period of 30 days to review and consider the changes. During this period, the Client may decide whether to accept or reject the amendments (the latter may lead to termination of the Agreement). If the Client does not provide written notice of rejection within 30 days after receiving notice, this will be construed as consent to the amendments. The Client will be deemed to have agreed to the updated Terms of Service.
11.7 Severability. In the event that any of the provisions of this Agreement shall be held by a court to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect.
11.8 Electronic Signatures. This Agreement may be executed and delivered by electronic signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. The Parties agree that the electronic signatures appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
11.9 Notices. All notices and other communications in connection with the Agreement shall be in writing and shall be considered given as follows:
- When delivered personally to the recipient’s address as stated on this Agreement;
- Three days after being deposited in the United States mail, with postage prepaid to the recipient’s address as stated on the Agreement; or
- When sent by email to the last email address of the recipient known to the person giving notice.
- Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first class mail, or the recipient delivers a written confirmation of receipt.
12. Disputes
12.1 Applicable Law and Venue. The laws of the State of California shall govern the Agreement. The venue for any legal action to enforce the terms of The Agreement will be in Los Angeles County, California and both Parties expressly submit to the jurisdiction of the state and federal courts located in Los Angeles County, California.
12.2 Dispute Under Agreement. Any dispute, controversy, or claim arising out of or relating to this Agreement, its interpretation, enforcement, breach, or validity, including claims for specific performance or injunctive relief, shall be submitted to JAMS for arbitration in accordance with its Comprehensive Arbitration Rules and Procedures, provided, however, that any Party may seek preliminary injunctive relief from a court of competent jurisdiction before the arbitration panel is appointed. The arbitration shall take place in Los Angeles, California, unless otherwise agreed upon by the Parties in writing. The Party initiating the arbitration shall be responsible for the payment of the initial filing fee. In the event that the arbitration panel determines that the claim or claims asserted in the arbitration were unfounded or brought in bad faith, the Party initiating such unfounded or bad faith claims shall be responsible for reimbursing the other Party for all reasonable arbitration fees and expenses incurred, including the filing fee paid by the other Party. The arbitration award shall be final and binding upon the Parties and may be enforced in any court of competent jurisdiction.