Terms and Agreement

Subject to these terms and conditions (this “Agreement”), GO3 Solutions, Inc. (“Go3”) agrees to provide certain services to the merchant (the “Merchant”) listed in the attached Merchant Setup Form related to Merchant’s product offering.

I. USE LICENSE

1. Subject to the terms and conditions of this Agreement, Go3 hereby grants to Merchant a limited, nonexclusive license to download one copy of the Go3 documentation and/or software from Go3’s website (collectively, “Materials”) for personal, non-commercial transitory viewing only.

2. Except as expressly licensed to Merchant hereunder, Go3 reserves all other rights, title and interests in and to the Materials.

3. Merchant hereby acknowledges that the Materials and all intellectual property rights protecting or pertaining to any aspect of the Materials are and shall remain the sole and exclusive property of Go3. This Agreement does not convey title or ownership to Merchant, but instead gives Merchant only the limited right to use the Materials, strictly in accordance with the express provisions, and under the express limitations, contained in this Agreement. Go3 reserves all rights not expressly granted by this Agreement.

4. Except as expressly set forth in this Agreement, Merchant has no right to use, make, sublicense, modify, transfer, rent, lease, sell, display, distribute or copy originals or copies of the Materials, or to permit anyone else to do so. In addition, Merchant will not reverse engineer, unencrypt, disassemble, decompile or otherwise translate the Materials or allow anyone else to do it. Merchant shall not remove any patent, copyright or trademark or other intellectual property notices that may appear on any part of the Materials.

5. Merchant authorizes Go3 or its designee to audit its compliance with this Agreement, as Go3 deems reasonable.

6. This Agreement (and the license granted hereunder) shall immediately terminate if Merchant violates any of the provisions of this Agreement. Further, Go3 may terminate this Agreement at any time upon notice to Merchant.

7. Upon termination of this Agreement, Merchant will immediately cease utilizing the Materials, and will immediately return to Go3 or destroy all copies of such Materials, and remove them (including the software) from all media in Merchant’s custody, possession or control. If Merchant otherwise retains or continues using any portion of the Materials after termination of this Agreement, Go3 shall be entitled to obtain both temporary and permanent injunctive relief, without any bond, and irreparable harm shall be presumed. Termination shall not relieve Merchant from paying all amounts accrued under this Agreement prior to termination and shall not limit Go3 from pursuing any other available remedies.

8. Merchant acknowledges that money damages may not be an adequate remedy for any breach or violation of any requirement set forth in this Section I and that any such breach or violation may leave Go3 without an adequate remedy at law. Merchant therefore agrees and acknowledges that any such breach or violation or threatened breach or violation will cause irreparable harm to Go3 and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Go3 shall be entitled to obtain both temporary and permanent injunctive relief against the threatened breach or violation of this Section I or the continuation of any such breach or violation, without the necessity of proving actual damages or posting bond or other security.

II. ASSIGNMENT OF SPECIFIC RIGHTS

1. For the purposes of receiving services from Go3, Merchant agrees to provide the following: (a) Give Go3 FTP and other back-end access to its website for uploading new web pages, and making changes on the web pages for the purpose of on-page optimization.
(b) Permission to communicate directly with any third parties, e.g., its web designer, web developer etc., if necessary.
(c) Full access to existing website traffic statistics for analysis and tracking purposes, like access to Google Analytics, Omniture etc.
(d) Permission to use Merchant official email address for the purposes of requesting links (something like contact@client-company.com)

2. Merchant grants Go3 the nonexclusive right and license to use Merchant’s logos, trademarks, website images, content etc., in conjunction with creating informational pages for Merchant or any other purpose as deemed necessary by Go3 in providing its services, such as for search engine optimization and social media optimization.

3. If Merchant’s site is lacking in textual content, Merchant will provide additional text content in electronic format for the purpose of creating additional or richer web pages. Go3 can create site content at an additional cost to Merchant. If Merchant is interested in purchasing content from Go3, Go3 may provide it at additional cost upon inquiry.

III. CONFIDENTIALITY

1. During the course of engagement with Go3, Merchant acknowledges that it may learn proprietary, secret or confidential information or data relating to Go3 and its operations, employees, products or services, customers or potential customers. The Materials are considered the confidential and proprietary information of Go3. Merchant agrees that at all times, whether during the term of this Agreement or after its termination, it will hold all confidential information of Go3 which Merchant accesses in the strictest of confidence, and to not use or disclose or sell such information for any purpose whatsoever without the prior written consent of Go3.

2. Merchant agrees not to disparage Go3 or any of its employees, associates or partners publicly (on public forums, blogs, social networks etc.) at any time whether during the term of this Agreement or after its termination.

IV. WARRANTY DISCLAIMERS; LIABILITY

Merchant acknowledges and agrees to the following with respect to services from Go3:

1. All fees are non-refundable.

2. Go3 has no control over the policies and ranking algorithms of search engines with respect to the type of sites and/or content that they accept now or in the future. Merchant’s website may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory.

3. Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Go3 does not guarantee No.1 positions or consistent top 10 positions for any particular keyword, phrase, or search term.

4. Google has been known to hinder the rankings of new websites (or pages) until they have proven their viability to exist for more than “x” amount of time or have enough back link strength. Go3 assumes no liability for ranking, traffic, indexing issues related to such penalties. Consequently Merchant understands that ranking new websites is much more difficult than ranking old and established sites and it should not have unrealistic expectations about rankings, traffic and revenues.

5. New websites may get a temporary boost in ranking for some targeted keywords for few days but then it settles down to its real place. This is known as ‘new site boost effect’ and it is quite common to happen. Consequently Merchant understands that its new site may not really have gotten top rankings within a month and soon it will go down to its actual position.

6. Occasionally, search engines will drop listings for no apparent reason. Often, the listing will reappear without any additional SEO efforts.

7. A website search engine ranking can fluctuate any day, any time because of on-going changes in the ranking algorithm, SEO efforts made by the competitors or both.

8. Go3 makes no guarantee/warranty of project timeline or added expenses (like charging additional fees etc.) if the service is destroyed either wholly or in parts, either knowingly or unknowingly by any party other than Go3 or without the prior consultation of Go3. Service is considered to be destroyed either wholly or in parts if following changes (but are not limited to) are made to a website by any party other than Go3 or without first consulting Go3 :
(a) Changes in the file(s) or folder(s) name
(b) Putting a file in a different folder or putting a folder in another folder or sub domain
(c) Making changes in the head section of a document like changing the text in the title tag, removing certain HTML tags required for site authentication.
(d) Deleting a link, folder, file, web document or sub domain.
(e) Modifying text on a web document like changing the formatting of the text or repositioning the text.
(f) Removing analytics code from the web page which is used to track website traffic.
(g) Linking out to any website without prior consultation of the Go3.
(h) Adding a file, folder, web document, widget or any functionality.
(i) Renaming URLs of existing web documents.
(j) Taking down the website or part of the website.
(k) Renaming, re-locating, adding or removing any file, folder or sub domain on a web server including web documents, robots.txt, htacess file, sitemap.xml, rss.xml etc
(l) Changes in the site architecture
(m) Changes in the anchor text
(n) Making any changes on an optimized web page

9. Go3 makes no guarantee/warranty of project timeline or added expenses (like charging additional fees etc) if:
(a) The Merchant fails to resolve Go3 queries on time.
(b) Make delays in providing required access, documents, permissions or any support.
(c) Fail to make necessary changes on the website as and when advised by Go3.
(d) There is a server outage for prolonged time on Merchant’s site.

10. Merchant will be charged an additional fee for re-constructing, re-optimizing content/web pages.

11. Except as may be specified herein, Go3 does not warrant that the Go3 services or the Materials will meet any particular standards or requirements or that Merchant’s use of the Materials or the Go3 services will be uninterrupted or error free. THE MATERIALS AND SERVICES ARE DELIVERED AND LICENSED “AS IS”.

12. GO3 HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE MATERIALS AND ITS SERVICES, EITHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, INCLUDING IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

13. GO3 SHALL NOT BE LIABLE HEREUNDER FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOSS OF GOODWILL OR REPUTATION, LOST REVENUES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE, IN EACH CASE WHETHER ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND HOWSOEVER INCURRED.

14. IN NO EVENT SHALL GO3’S AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, INFRINGEMENT OF THIRD PARTY RIGHTS OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, EXCEED THE LESSER OF (I) AMOUNT OF FEES ACTUALLY PAID BY MERCHANT TO GO3 HEREUNDER, AND (II) $1,000.

V. MERCHANT CONTENT AND APPROVAL OF WORK

1. Merchant guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Go3 for inclusion on the website above are owned by Merchant, or that Merchant has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Go3 and its subcontractors from any liability or suit arising from the use of such elements.

2. On completion of the work you will be notified and have the opportunity to review it. You must notify us in writing of any unsatisfactory points within 7 days of such notification. Any of the work which has not been reported in writing to us as unsatisfactory within the 7-day review period will be deemed to have been approved. The Merchant will be charged an additional fee for re-constructing, re-optimizing content/web pages after approval notice received by Go3.

VI. MISCELLANEOUS

1. The rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflicts of laws principles). The parties hereby consent to the sole and exclusive jurisdiction to the state and federal courts located in New York, New York for any dispute arising out of this Agreement.

2. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY.

3. Merchant agrees to defend, indemnify, and hold Go3, its subsidiaries, affiliates, and its and their respective officers, directors, employees, sub-contractors, suppliers, agents and representatives (collectively, the “Go3 Entities”) harmless from and against any claim, demand, cause of action, or proceeding related to this Agreement (“Claim”) brought by any party as a result of any breach of Merchant’s representations, warranties, covenants or agreements under this Agreement. Merchant further agrees to defend, indemnify, and hold the TIB Entities harmless from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) that may result or arise from any Claim.

3. All notices and other communications required or permitted under this Agreement shall be in writing and given by personal delivery, telecopy (confirmed by a mailed copy), or first class mail, postage prepaid, sent to the addresses set forth in the Merchant Setup Form.

4. Go3 reserves the right to make changes to this Agreement at any time. If any term or condition of this Agreement shall be deemed invalid, void, or for any reason unenforceable, that term or condition shall be deemed severable and shall not affect the validity and enforceability of any remaining term or condition.

5. Merchant may not assign this Agreement without the prior written consent of Go3 and any attempt to do so without such consent shall be void.