Terms of Service / Agreement

The following describes the terms on which First Web Marketing, Inc. herein “Company” offers services to subscriber. In this agreement You the Subscriber is sometimes referred to as You, Your, Their, Party and/or Subscriber and Company is sometimes referred to as Company, Party, We, Our, Us, FWM, or First Web Marketing, Inc.. First Web Marketing, Inc. has various domain names in which it does business under all of which are owned by Company.

You agree that by using the services of FWM you are agreeing to the following terms of this Agreement below and the general policies of services from Company and/or our subsidiaries. Before you can become a Subscriber of FWM services, you must read and accept all the terms and conditions of this Agreement. By agreeing to this Agreement you agree to be bound by the Terms of Service found herein.

Your initial payment and continued payment for Our Services and/or digital signature confirms your acceptance of Terms of Service.

This Service Agreement supersedes any other written or oral communications, understandings and agreements.

All Services of First Web Marketing are available on a Month-to-Month Basis and can be cancelled by either Party upon 5-day written Notice.

Additional Terms of Service:

The Terms of Service found herein may not be assigned by You without prior written approval from Company. FWM may transfer or otherwise assign rights of this Agreement or any part of this Agreement to any other Party at Our sole discretion.

A Lead is primarily someone calling to inquire about services that you offer in your service area. A Lead can also be emails, social messaging etc. All calls, emails, social response, inquiries, etc. are monitored on the website, map accounts and any other online accounts we manage for optimization purposes.

We make no representations or warranties whatsoever as to what rankings your keywords or map listings will hold in the rankings of the search engines. Search engine algorithms that determine placement are private and are constantly changing and no one can guarantee placement and ranking of keywords or maps or other forms of search rankings. You grant us the authority to make posts and/or changes to Your social media accounts, search engine accounts, webmasters accounts, map listings and other accounts as needed for Our web management services. We make no representations or warranties whatsoever as to the results, placements and popularity or Your Social Media accounts and any and all other Web related marketing. Additionally, we make not representation or warranties as to the response, return, calls, clicks and new clients you will receive from any paid efforts from our services or any third party services we may manage on your behalf such as Pay Per Click (PPC), paid social media efforts and other marketing efforts. We in no way guarantee exclusivity in any market or city in any way whatsoever.

Subscriber understands and accepts any responsibilities for 508 Compliance for the website and agrees to have it scanned on a regular bases to ensure compliance. Any violations must be reported to Company so they can remedy them as quickly as possible.

Subscriber takes full responsibility for any check-in photos, or other photos that they provide to Company or upload through means of a check-in or any other means. Such photos must be free from copyrights, trademarks, personal property rights, service marks, or any legal encumbrance.

Subscriber must notify Company in writing 30 days beforehand if they change their ad spend with PPC campaigns.

You may not transmit, distribute, download, copy, cache, host, or otherwise store any information, data, material, or work that infringes the intellectual property rights of others as required by the any law or regulation. Additionally, Company has the right to disable access to, or remove, infringing content to the extent required under any law or regulation.

You agree that you will not use any robot or crawler or other automated process to access the Websites for any purpose without our express written consent. You may not re-direct, bypass source code, use a third party hosting service and/or an alternate provider in conjunction with our website(s). Our website(s) we create for Your business may have hyperlinks back to NolenWalker.com or other FWM websites. Additionally, we may use your website and affiliated web related items (design, content, blog, webmaster accounts, social media accounts, mapping etc…) for Training purposes (training might include our staff, training to the general public and training for an affiliated entity) and references.

Company created websites, designs, content, coding, domains registered by Company, and all other Intellectual Property created by Company is and shall always remain the exclusive property of Company.

Only FWM has access to the FTP Servers where our Websites, Websites via Subscription, Content, Source Code, SEO (search engine optimization) Work, Programming, Processes, Logos, and Designs are stored. If you need changes made to the website then you may contact FWM for any changes to be made to the website and we will execute such possible changes. We do not give out access to our FTP Servers or Websites for any reason whatsoever. We typically do not work in conjunction with third Parties in any way with our websites or work that we do. We reserve the right to deny server or website and other related web access to any third party for any reason whatsoever. Company reserves the right to work with third parties in conjunction with our services at our sole discretion.

We may limit, suspend or terminate our Services if we have reason to believe that You are violating any Terms of Service of this Agreement or any online laws or regulations including but not limited to the CAN-SPAM Act of 2003. Additionally, we may terminate this Agreement at our sole discretion at any time without notice.

You may NOT frame, create derivative works from, transfer, access, modify, copy, distribute, transmit, display, perform, reproduce, publish, license or otherwise use in whole or in part any part of the Website(s) or Subscribed to website(s), except for the purposes expressly provided herein, without our prior written approval. FWM reserves the right to modify the content and Source Code for Optimization (SEO) purposes so that the Website(s) may show up in the search engines for specific city related combinations or other keyword terms and phrases.

All rights and remedies given to FWM in these Terms of Service are of a cumulative nature and not exclusive of any other rights or remedies that We may otherwise have. Modification, waiver or amendment of any of these Terms of Service shall NOT be effective against FWM unless in writing and signed by an executive officer of the Company.

We are not responsible for paying any Taxes, penalties or fines levied upon You by any State you conduct business in. Additionally, we are not responsible for paying any other fees associated with the website such as phone tracking charges, pay per click fees, social media fees etc… (FWM does pay for basic hosting of the website where FWM built and is hosting the website).

In the event that Subscriber refuses a Lead or choses to turn away Leads, First Web Marketing reserves the right to reroute those Leads to our office or to another company in your area.

Additional terms for DataPins or Field360 service

First Web Marketing is a reseller for DataPins and Field360 Software As A Service (SASS), hereafter known as DataPins and therefore the following terms set forth by DataPins also apply.

1. Definitions

1.a “Confidential Information” as used in this Agreement means any information that is trade secret or is otherwise confidential to DataPins. Confidential Information does not include information that is presently in the public domain or that is readily ascertainable by proper means by the public.

1.b “Content” as used in this Agreement includes (but is not limited to) information such as text, images, audio, video, photographs, messages, email, hyperlinks, check-ins, location data, ratings, reviews, and data.

1.c “Subscriber” refers to the same Subscriber agreeing to the terms of FWM’s agreement.

1.d “Reseller” refers to FWM.

2. USE and ACCESS OF DataPins

2.a Subscriber is purchasing from Reseller a limited right to access and use the DataPins product, as set forth herein. Nothing in this Agreement involves or reflects any actual sale or transfer of any software, technology, or documentation associated with the DataPins Product and this Agreement shall not in any way be interpreted to involve or reflect an actual sale or transfer of any software, technology, or documentation associated with the DataPins Product.

2.b Subscriber understands and accepts any responsibilities for compliance with Section 508 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(d) (508 Compliance) and agrees to have its website scanned on a regular basis to ensure compliance. Any violations related to the DataPins product must be immediately reported to DataPins so that DataPins may take the appropriate remedial steps.

2.c Subscriber will use the DataPins product only within the USA.

2.d Subscriber takes full responsibility for any check-in photos, or other photos that it provides to DataPins or uploads through a check-in or any other means. Subscriber’s access to, or its replication, publication, storage, or other use of these photos must not infringe any rights of another, including (but not limited to) any copyrights, trademark rights, privacy rights, publicity rights, or contract rights.

2.e Subscriber will not transmit, distribute, download, copy, cache, host, or otherwise store any information, data, material, or work that infringes any intellectual property rights of another. DataPins has the right to disable access to, or remove, Content to the extent required under any law or regulation.

2.f Subscriber will not transmit, distribute, download, copy, cache, host, or otherwise store any information, data, material, or work that constitutes or includes pornography, threats of violence, or hate speech.

2.g Subscriber will at all times remain in compliance will all local, state, and federal laws and regulations regarding Internet and Content use, including (but not limited to) issues related to intellectual property rights, defamation, consumer protection, unfair competition, electronic and Internet marketing, telemarketing, privacy, and data security. This includes, for example the Lanham Act, Copyright Act of 1976, Digital Millennium Copyright Act, CAN-SPAM Act of 2003, Health Insurance Portability and Accountability Act, Telephone Consumer Protection Act, Telemarketing and Consumer Fraud and Abuse Prevention Act, FTC’s Telemarketing Sales Rules, and FTC’s Red Flag Rules. Subscriber is solely responsible for knowing, understanding, and complying with all laws and regulations.

2.h Subscriber will not use the DataPins product in any way related to the provision of medical services involving sharing, acquiring, using, or storing sensitive medical information or photographs of patients. Subscriber also understands that DataPins product is NOT HIPPA compliant and is not suitable for use where HIPPA compliance is required.

2.i Subscriber will not use any robot or crawler or other automated process to access the DataPins server, API, or the application for any purpose without FWM’s prior express written consent.

2.j Subscriber will not frame, create derivative works from, transfer, access, modify, copy, distribute, transmit, display, perform, reproduce, publish, license or otherwise use in whole or in part any part of the DataPins product except for the purposes expressly provided herein, without prior express written consent from DataPins.

2.k Subscriber is solely responsible for determining and acquiring all necessary rights and permissions and determining and complying with all applicable laws and regulations, including acquiring and maintaining any applicable licenses and permits, paying any applicable taxes, and complying with any data-security or privacy laws or regulations.

2.l Company may at any time and in its sole discretion and without notification, remove any Content (including Subscriber’s Content) acquired or uploaded by or through the DataPins product.

2.m Subscriber assumes full responsibility for obtaining property and model release forms for any subjects and/or property included in any photos uploaded to DataPins product. Subscriber will ensure that the photographs taken are done by themselves or their employees or they have full legal rights, including copyright consent, to use them as check-in photos. In not event shall DataPins be liable for the content of photos uploaded to DataPins product by Subscriber.

2.n Subscriber is fully responsible for obtain proper consent from their customers, if required by law, before sending them review requests via SMS text messages and/or email.

3. Intellectual Property and Confidential Information

3.a DataPins is, remains, and will remain the sole owner of DataPin’s name and DataPin’s trademarks, patents, copyrights, trade secrets, know-how, and other confidential or proprietary information, be it currently existing or after-arising or after-acquired (collectively, “DataPin’s Intellectual Property”). Subscriber does not acquire any right in or to DataPin’s Intellectual Property, or any third-party intellectual property, except as expressly provided in this Agreement. Immediately on termination of this Agreement, any right to DataPin’s Intellectual Property or to any third-party intellectual property provided to Subscriber under this Agreement also terminates.

3.b Subscriber grants DataPins a perpetual, irrevocable, world-wide, royalty-free, nonexclusive, fully paid-up, and sublicensable license to store, publish, copy, perform, or in any way permitted by law use any and all Subscriber Content acquired or uploaded by or through the DataPins product.

3.c Subscriber may have reason to access DataPin’s proprietary and confidential information from time to time, such as business procedures and programs, and technical details of the DataPins product (“Company’s Confidential Information”). All such information is, will be, and will remain DataPin’s property. Subscriber will hold all of DataPin’s Confidential Information in strict confidence and will not disclose it to others. Nor will Subscriber use DataPin’s Confidential Information in any way, commercially or otherwise, except in performing under this Agreement as provided for in this Agreement. In order to protect the proprietary and confidential nature of DataPin’s Confidential Information as well as DataPin’s goodwill, during the term of this Agreement and for a period of 24 months thereafter Subscriber will not take any effort to make, use, or sell any product that is a substitute for or rival of the DataPins product.

4. Representations, Warranties, and Indemnities

4.a Subscriber represents and warrants that: (i) it has the right to enter and perform under this Agreement without liability to others and (ii) its efforts provided under this Agreement will be performed in a workmanlike manner, with professional diligence and skill, and in accordance with reasonable commercial standards.

4.b Company provides the DataPins product “as is” and “where is” and Subscriber accesses or uses the DataPins product at Subscriber’s sole risk. DataPins does not guarantee error-free uninterrupted services or that the product will meet Subscriber’s needs or expectations. DataPins is not responsible for any data loss associated with Subscriber’s use of the DataPins product.

4.c DataPins provides no warranty or guarantee of any kind and specifically DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

4.d IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

4.e Subscriber will defend and indemnify DataPins and its assignees, directors, officers, employees, and agents and hold Company and its assignees, directors, officers, employees, and agents harmless, from and against all costs or claims arising out of or resulting from this Agreement, Subscriber’s use of or access to the DataPins product, or any negligent act or omission or willful misconduct of Subscriber.

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

Copyright:

All website materials previously owned by you shall remain yours, including but not limited to pre-existing design, pre-existing content, pre-existing pictures, pre-existing logos, & pre-existing domain names. Any Intellectual Property created by Us, including but not limited to designs, content, pictures, coding, & SEO processes, will be the sole property of FWM and protected under Federal Copyright Law and all right, title and interest in such is the exclusive property of FWM.

In the event that the web site is stolen, scraped, or copied to a hosting server that does not belong to First Web Marketing, or the content is copied to a site not on First Web Marketing’s servers, for the benefit of Subscriber, First Web Marketing can and will seek damages for no less than $350 per page in addition to other losses incurred including attorney fees and legal costs.

Previously Existing Websites

It is Your sole responsibility to maintain previous hosting accounts or create backups of existing websites or web properties that you control. In the event this Agreement is canceled or terminated the website we built and controlled will be taken down. It is Your responsibility to switch your domain name back to a previous hosting account, restore your site from it’s backup and point your domain to the hosting account, or have a new website created on your behalf.

Subscriber Owned Domain Name:

Company is not responsible for maintaining or keeping the Subscriber owned domain or .com active. The Subscriber shall maintain and pay for their own domain name and is required to keep their account in good standing with Their registrar. FWM does not own Subscriber’s pre-existing domain names.

Our Limited Liability:

You will Not hold FWM liable for any losses or damages whatsoever, financial or otherwise resulting from the use of FWM website(s) and services including but not limited to; the website(s) server issues, changes to search engine algorithms, changes to your social media accounts, transmission issues, content issues, source code issues, programming issues, processes, designs, SEO work issues, failure to post content of any type, loss of data, change in keyword rankings, change in map listing ranking, change in social media likes / followers and/or change in how the site(s) / maps / social media showed up on the Internet in any way whatsoever, service interruptions or any failure of the website(s) to work properly for any reason or third party complications or computer viruses or any reason whatsoever.

We make no representation that you will receive any level of benefit, calls, leads or new clients. Your expenditures for all marketing is your sole responsibility. Spending money on Webmasters, Design, Content, SEO, Mapping, Pay Per Click (PPC) is no guarantee of new business, clients or sales of your services or products. If at any time you feel that you are not happy with your return on any monies spent then it is your sole responsibility to cease services. It is your sole responsibility to regularly check and confirm budget spend with all services. FWM is not responsible for verbal changes you make to your spend rates and FWM makes no refunds for any reason whatsoever on services we perform or render nor do we refund other 3rd party services we may manage for you such as your Pay Per Click (PPC) budget, Social Media advertising or other monies you spend on the Web or for marketing and branding purposes.

In any event Our complete liability to you for any reason whatsoever shall not total more than $250. You have had the opportunity to discuss the limitation with Our representative and You understand that you may buy higher Limitation of Our Liability by paying an additional Fee to the Company.

Our Rights, Title and Interest in FWM’s Rights to Our Websites, Content, Source Code, Processes, SEO (search engine optimization) work, Programming, Logos, and Designs, Limitations of Liability, Indemnification, Limitation on Lawsuits and other Rights of Ours and Limitations of Liability found herein shall survive the termination of this agreement.

Notices:

We may email You notices or mail notices to any email address or street address that you have provided to us. It is your responsibility to keep your email addresses that we have on file for you updated and accurate. If emailed then notice shall be deemed to have been received 24-hours from time email was sent.

Disclaimers of Warranty:

The information, products and services on the website(s) are provided on an “as is”, “where is” and are only at your sole risk with no express or implied warranties given by Company. We disclaim all express and implied warranties, including without limitation, warranties of merchantability, and fitness for a particular purpose, of error free uninterrupted services or that the information on the website(s) will meet your needs or expectations. We shall not be liable for any harm caused by the transmission of computer viruses or other programming device that may cause damages to the website(s), changes in keyword ranking, map list ranking, social media presence / likes or changes to the search engine’s algorithms and/or loss of business in any way whatsoever. Additionally, we shall have no liability whatsoever for actions or disruptions of any third party.

Indemnification:

You hereby indemnify and hold Company and our Agents, Subsidiaries, Officers, Directors, Joint Ventures and Employees harmless from any claims, actions, proceedings, losses, liabilities, damages or demand, including reasonable attorneys’ fees and expert fees and costs, made by any third party due to your violation of any Laws or the Rights of a third party or your breach of this Agreement.

Limitation on Lawsuits:

This Agreement shall be construed in accordance with the laws of the State of Texas, entirely independent of the forum in which this Agreement or any part of it may come up for construction, interpretation, or enforcement. Both Company and Subscriber agree that no lawsuit or any other legal proceeding connected with this Agreement shall be brought or filed more than one year after the incident giving rise to the claim occurred. In addition, any such legal proceeding shall not be heard before a jury. Each party gives up any rights to a jury trial unless prohibited by law. Any lawsuit brought by either party to enforce this Agreement shall be brought in Tarrant County, Texas.

Fees for our Services:

Services are offered on a month to month basis and as such there are no refunds for any reason whatsoever.

All subscribers are setup for electronic payment processing for our services. It is the obligation of the Subscriber to notify FWM at least 5-days prior to billing for billing account changes.

A Lead is considered a new service inquiry that contacts you through Phone, Text, E-mail, or online through any other electronic source and was generated by the marketing efforts of our Company. There are no refunds on Leads for any reason whatsoever.

FWM is not responsible for cessation of Services due to non-payment on declined charges or inability to receive payment on an account.

Company Fees for our services depending on which Plan you subscribed to. We take payment via auto credit, debit or ACH. All Fees are due the same day as the invoice creation. Your billing amount will be established upon set up of the website. All Fees are subject to price increases for inflation and costs of doing business. All charges are considered delinquent after the 5th business day of invoice creation if not paid. If the Subscriber’s account becomes delinquent then FWM reserves the right to suspend Your account without notice until full in arrears payment plus any tax, collection fees and any other fees are made. Account suspension may result in website(s) going down if we host the website or domain name. PPC Management accounts are sometimes billed in advance depending on the package so PPC accounts may be taken offline for non-payment prior to the intended month of service. Additionally, non-payment would result in dropping of enhanced listings that FWM may have paid for on Your behalf as well as stopping any and all other work we were performing or supporting for the site and/or web presence as a whole.

Entire Agreement:

Headings found within this Agreement are for Reference purposes only and in no way limit the scope of extent of such section. The entire Agreement between You and First Web Marketing, Inc. is written in this Agreement, this replaces any earlier oral or written understandings or Agreements. If any provision of this Agreement is found to be invalid or illegal by a court, the balance of the Agreement shall remain enforceable. You agree that this Agreement is performed in the state of Texas