1. Services to be performed. Captain Marketing agrees to perform Internet marketing and website design services (the “Services”) on Buyer’s behalf, according to the Services selected as part of this online sign-up process. Captain Marketing agrees to provide the Services to Buyer each month in exchange for the fees set forth in this online sign-up process.
Captain Marketing and Buyer agree that the Services that Captain Marketing performs on behalf of Buyer are intended to enhance Buyer’s online presence and performance, and that there are continual, consistent changes to the various search engine algorithms that take place from time to time by the search engine companies themselves for which Captain Marketing has no direct control.
Therefore, Captain Marketing and Buyer agree that Captain Marketing, in its sole discretion and without notice to Buyer, has the right to modify the Services selected by Buyer anytime during the Term provided that Captain Marketing reasonably believes that said changes in Services will likely provide better results to Buyer.
2. Term of Agreement. This Agreement will become effective and is fully executed when the Buyer (or sales representative on the buyers behalf) checks the box acknowledging that he/she has read and agrees to the terms and conditions contained in this Agreement, provides payment, as well as provides his/her name at the final stage of this online process representing his/her digital signature thereon. By providing payment information, the buyer “opts in” to the Captain Marketing Terms and Conditions. The Term of this Agreement begins from its date of execution and shall continue on a month-to-month basis until such time as the date a party terminates this Agreement as provided below. For Website Store agreements, the Term is different; see below.
3. Termination of Agreement. This Agreement is month-to-month. Notice of termination shall be given only in writing, by Buyer to Captain Marketing at 4505 Las Virgenes Canyon Road, Suite 210, Calabasas, CA 91302 or by email to: support@captainmarketing.com; or by Captain Marketing to Buyer at the street address or email address provided by Buyer during the sign-up process, or to Buyer’s updated street or email address as provided in writing by Buyer to Captain Marketing thereafter. Captain Marketing is entitled to one final payment after buyer cancels, if the bill date is within 28 days of cancellation date as shown in these Terms & Conditions, on the payment Portal and on the Buyer’s receipt. For Website Store agreements, pre-Term termination is not available; see below.
4. Website Store Term and Termination. Website Store plans have a fixed term as set forth in the Plan Summary that Buyer agrees to before purchase (the “Website Agreement Term”). During the Website Agreement Term, Buyer may not cancel this Agreement for any reason. Captain Marketing makes a substantial investment in the creation of Buyer’s website, and Buyer agrees that all the revenue Captain Marketing receives for the Website Agreement Term’s monthly payments constitutes liquidated damages in the event Buyer breaches this Agreement. Captain Marketing retains ownership of the website and the consumer traffic to the website until the Website Agreement Term has ended. In the event Buyer breaches this Agreement before the Website Agreement Term has ended, Captain Marketing may shut down the website until Buyer has made payment in full including late fees. After the Website Agreement Term has ended, Buyer shall own the website as provided for in this Agreement, and Buyer’s plan will automatically continue on a 549.95/month plan with a month-to-month term that Buyer may cancel at any time.
5. Payment. In consideration for the Services to be performed by Captain Marketing, Buyer agrees to pay Captain Marketing a campaign management and consulting Set-up Fee, plus a Monthly Fee for the duration of the term. The Set-up Fee and the first Monthly Fee are due upon execution. The second Monthly Fee shall be paid one month after this Agreement is executed, and subsequent Monthly Fee payments shall be paid by the same day each successive month.
6. Late Fees. Late payments by Buyer shall be subject to late fees of 1.5% per month from the due date until the amount is paid. Any EFT payment returned or rejected by Buyer’s bank shall be subject to a $30 NSF fee payable by Buyer to Captain Marketing. Captain Marketing has the right to discontinue Services without notice to Buyer if any payment becomes delinquent by more than S days.
7. Intellectual Property Ownership. Captain Marketing will provide Buyer its marketing systems, procedures, internet directory listings, website designs and elements, and/or other expertise (“Work Product”). Captain Marketing grants Buyer a royalty-free nonexclusive worldwide license to use the Work Product for the purpose of marketing and selling Buyer’s products and services. The license shall have a term that expires at the time this Agreement terminates and is conditioned upon full payment of the compensation due Captain Marketing under this Agreement. Captain Marketing retains all other rights, title, and interest, including all copyrights, patent rights, and trade secret rights, in the Work Product.
8. Captain Marketing’s Reusable Materials. Captain Marketing owns outright, and/or owns a license to use and sublicense, various materials in existence before this Agreement’s date of execution (“Captain Marketing’s Materials”). Captain Marketing may include Captain Marketing’s Materials in the work performed under this Agreement. Captain Marketing retains all rights, title, and interest, including all copyrights, patent rights, and trade secret rights, in Captain Marketing’s Materials. Captain Marketing grants Buyer a royalty-free nonexclusive license to use any Captain Marketing’s Materials incorporated into the work performed by Captain Marketing under this Agreement. The license shall have a term running concurrently with the term of this Agreement and shall not be transferred by Buyer.
9. Exclusive Agreement, Modifications, Waivers, Severance. This is the entire Agreement between Captain Marketing and Buyer. Any modifications to this Agreement must be in writing, and signed by both parties. Any waiver shall not be effective against any party unless in writing executed on behalf of such party. 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 this Agreement shall otherwise remain in full force and effect.
10. Warranty. Buyer must report any deficiencies in Captain Marketing’s services to Captain Marketing in writing within 30 days of performance to support@captainmarketing.com to receive warranty remedies. Software bugs, search engine algorithmic changes, downgrading and/or degradation of incoming links are to be expected and addressed under the terms of this Agreement. Buyer’s exclusive remedy for any breach of the above warranty shall be the re-performance of Captain Marketing’s services. If Captain Marketing is unable to re-perform the services, Buyer shall be entitled to recover the fees paid to Captain Marketing for the deficient services. Every effort will be made to complete all aspects of the optimization process. If any part of Captain Marketing performance of the Services cannot be performed due to website limitations beyond Captain Marketing’s control, Buyer waives these services. 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 THIS AGREEMENT.
11. Limited Liability. Captain Marketing’s total liability to Buyer under this Agreement for damages, costs and expenses shall not exceed the compensation received by Captain Marketing under this Agreement. NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE FOR THE OTHER’S LOST PROFITS, OR SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE PARTY HAS BEEN HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF SUCH DAMAGES.
12. Notices. All notices and other communications in connection with this 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; or, Three days after being deposited in the United States mail, with postage prepaid to the recipient’s address as stated on this 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.
13. No Partnership. This Agreement does not create a partnership relationship. Neither party has authority to enter into contracts on the other’s behalf.
14. Refunds. All sales are final. There are no refunds or credits of any kind.
15. Applicable Law and Venue. The laws of the State of California shall govern this Agreement. The venue for any legal action to enforce the terms of this 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.
