Date Last Modified: August 2nd, 2023
1. Introduction All Fasturtle Interactive, LLC services are governed by the Master Services Agreement below and with the additional Terms and Conditions set forth below in the applicable agreements, policies and other addenda to the Master Services Agreement for any specific service purchased or otherwise acquired as part of a bundled or packaged solution (the Master Services Agreement along with all applicable agreements, policies, addenda, terms, conditions and other related notices are collectively referred to herein as the “Agreement”.).
This Services Agreement (the “Agreement” and/or “Terms and Conditions”), as amended from time to time by Fasturtle Interactive, LLC (the terms “The Company”, “Fasturtle”, “FT”, “Ourselves”, “Our”, “We” and “Us”, shall refer to Fasturtle Interactive, LLC), between you (the terms “Client”, “You” and “Your” shall refer to the individual, entity or organization that accepts this Agreement, has access to your account, or uses the Services) and FT, applies to each Agreement, and sets forth the terms and conditions applicable to Client purchase and/or use of FT products and services (collectively, the “Services”) as further set forth herein. Client and FT together may be referred to herein as the “Parties” and each may be referred to herein as a “Party.”
All terms refer to the offer, acceptance and consideration of payment necessary to undertake the process of our assistance to the Client in the most appropriate manner, whether by formal meetings of a fixed duration, or any other means, for the express purpose of meeting the Client’s needs in respect of provision of the Company’s stated Services, in accordance with and subject to, prevailing Arizona State Law. Any use of the above terminology or other words in the singular, plural, capitalization and/or he/she or they, are taken as interchangeable and therefore as referring to same. This Agreement explains our obligations to you, and your obligations to us in relation to any Services you purchase or otherwise utilize.
By accessing or using any FT website, any FT Service, or any applications (including mobile applications) made available by FT, Client agrees to be bound by this Services Agreement. From time-to-time Fasturtle Interactive, LLC may change this Services Agreement and/or Privacy Policy Statement in order to make improvements, adjust to changes in the technological marketplace, or align with Government rules and regulations. Please check https://fasturtle.com/terms-conditions periodically for such updates.
You acknowledge that you have read, understand and agree to be bound by this Agreement, as well as all other applicable rules or policies, terms and conditions, or Service agreements that are or may be established by FT from time to time and are incorporated herein by reference. You may also elect to purchase or use additional Services (the “Additional Services”) from FT, our partners and/or other third parties, which may have their own Service agreements or other related terms and conditions, and it is your obligation to review, accept and abide by those Service agreements or other related terms and conditions, as well as this Agreement.
2. General Terms This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between Client and FT. Neither Party has the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other Party or its affiliates, whether express or implied, or to bind the other Party or its affiliates in any respect whatsoever. The relationship between Client and FT is limited to the responsibilities and obligations of both Parties as established in this entire Agreement. Inconsistent terms on purchase orders, invoices or other documents shall have no effect and are expressly rejected by FT. This Agreement shall be governed in accordance with the laws of the United States of America and the State of Arizona, without regard to conflict of law principles, as if the Agreement was a contract wholly entered into and wholly performed within Maricopa County in the state of Arizona. The application of the United Nations Convention of the Contracts for the International Sale of Goods (“CISG”) is expressly excluded.
Client agrees that any judicial proceeding relating to or arising under this Agreement or the Services will be instituted only in a federal or state court of competent jurisdiction in Maricopa County in the State of Arizona. You consent to the personal jurisdiction of such court and waive the right to challenge the jurisdiction of such court on grounds of lack of personal jurisdiction or forum non conveniens, or to otherwise seek a change of venue. You agree to waive the right to trial by jury in any action that takes place relating to or arising under this agreement or the services. (Acceptance of this Agreement, means you no longer have the right to a jury trial). You also agree to waive the right to file a class action claim relating to or arising under this Agreement or the Services.
In the event a claim is brought against FT in a foreign jurisdiction (a court other than in Maricopa County, Arizona), FT will file to have the claim dismissed per your acceptance of this Agreement existing at the time of your purchase of Services and your continued use of the Services as evidence of acceptance of the Agreement and this Section.
The Parties agree that the foregoing obligation is independent from all other obligations herein. You acknowledge that, in the event you initiate a judicial proceeding in any court other than one of the aforementioned courts in Maricopa County, Arizona, FT may, and likely will, incur costs and expenses, including attorneys’ fees, to enforce the agreement of the Parties regarding the court where litigation relating to or arising out of this Agreement or the Services shall be instituted. You expressly agree that you will reimburse FT for any such costs and expenses, including, but not limited to, attorneys’ fees, incurred by FT within ten (10) days of receiving a written demand from FT for such reimbursement. You further agree that if you do not timely reimburse FT within ten (10) days of receiving a written demand for reimbursement, you will be responsible for, and agree to pay, all costs and expenses, including, but not limited to, attorneys’ fees, incurred by FT in seeking to collect or recover from you the amount reimbursable by you under this Section.
3. Fees and Payments, Terms and Renewals As consideration for the Services Client purchases, orders or otherwise utilizes, Client agrees to pay FT all applicable prices and fees as designated in the related order process, with such prices and fees subject to change as provided in this Agreement. All prices and fees are non-refundable except as otherwise expressly provided in this Agreement or as required by applicable law. All prices and fees are due immediately upon ordering except in cases where, at FT’s sole and absolute discretion, FT elects to invoice clients. Client invoices are due on receipt.
If Client requires Additional Services, then additional prices and fees will apply pursuant to the current rates, which are also subject to change in accordance with this Agreement. Set up prices and fees, if any, will become payable on the applicable effective date for the applicable Services. Unless otherwise stipulated in the related order process, payment for the Services are to be made via a charge to Client credit card or charge card provided to FT (the “Account”).
By submitting an order for Services, Client authorizes FT to charge the order to the Client or to otherwise immediately bill Client for the Services. Client acknowledges and agrees that unless otherwise expressly stipulated in the order process or otherwise changed afterwards in accordance with the applicable process, all annual, monthly or other recurring fees related to the Services or otherwise referenced in this Agreement are to be recurring transactions that will be billed on an ongoing basis until the Services are terminated in accordance with this Agreement. If Client has provided billing information sufficient for automatic billing, then FT will bill Client automatically in accordance with the applicable billing frequency. Client is obligated to pay for the full amount of the Agreement, even if such full amount is scheduled to be paid in installments. If Client elects to pay for the Services in installments, provided such a payment schedule is expressly permitted and accepted by FT, all installments must be received on or before the applicable due date.
As part of the FT Services, your work may be dictated by an Order Form and/or Scope of Work (the “SOW”). In addition to the terms and conditions set forth in this Agreement, you shall be bound by the terms of the SOW which shall be prepared by FT and mutually agreed to by Client and FT. The SOW may contain, but may not be limited to, a list or description of the services FT will provide you, a list of technical, graphic or other special items that will be incorporated into your Service, applicable fees and payment schedule, and a description of any applicable cancellation fee or policy. This SOW shall become a part of this Agreement and shall be subject to all terms and conditions of the Agreement.
Unless otherwise specified herein, on our website or in the applicable order process, each FT Service is for a one-year initial term and renewable thereafter for successive terms. Any renewal of Client Services with FT is subject to our then current Terms and Conditions, including, but not limited to, successful completion of any applicable authentication procedure, and payment of all applicable service prices and fees at the time of renewal.
Pricing for Services, renewals, and product upgrades and add-ons may vary based upon the date of Client purchase. Additional payment terms may apply to the Services Client purchases, as set forth in the applicable supplemental service and product agreements to this Agreement, on our website or as otherwise outlined in the applicable order process. Services to which Client subscribes to on a monthly or recurring basis automatically renews on a recurring basis until the Agreement is properly terminated in accordance with its terms. Client acknowledges and agrees that the renewal price may be higher or lower than the price Client paid for the then current term of the Services, and that FT is authorized to charge Client credit card or other payment method on file for the renewal of the Services.
In any event, Client is solely and absolutely responsible for the credit card or payment information Client provided to FT and must promptly inform FT of any changes thereto (e.g., change of expiration date or account number) via email to accounting@fasturtle.com. Client acknowledges and agrees that FT, at its sole and absolute discretion, may extend the expiration date on Client credit card on file with FT in order to protect against unwanted expiration of Client Services and to allow for the automatic renewal thereof. FT shall have no liability to Client or any third party in connection with the renewal as described herein, including, but not limited to, any failure or errors in renewing the Services whether due to Client, FT or a third party:
Credit Terms – FT, at its sole and absolute discretion, may extend credit terms to qualified accounts. Credit card payments will not be accepted where Net Terms have been extended for fee payment, without prior written approval from FT.
Buyer shall bear all applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes), as well as import or customs duties, license fees and any other similar charges, however designated or levied on the sale or delivery of the Services or measured by the purchase price paid for the Services. FT prices set forth do not include such taxes, fees and charges. Exemption certificates must be presented to FT prior to any Services delivery if exemption certificates are to be honored.
If for any reason FT is unable to charge Client account or other payment method for the full amount owed for the Services provided, or if FT receives notification of a chargeback, reversal, payment dispute or is charged a penalty for any fee it previously charged to Client Account or other payment method, Client agrees that FT may pursue all available lawful remedies in order to obtain payment, including, but not limited to, immediate cancellation, without notice to Client, of any Client Services.
If FT provides any Service discount to Client and Client defaults on payments or obligations as outlined herein, FT may rescind all discounts and require full payment for the Services. A late fee of up to $35 per month of payment due may be added to fees if not paid by 30th of month payment due.
Without limiting any of FT’s rights hereunder, should any price or fee payment become delinquent, FT may suspend or cancel any or all Client Services; provided, however, related charges will continue to accrue. Client acknowledges and agrees that FT is not responsible whatsoever for any effect the suspension or cancellation of Services might have. Moreover, additional fees may also be assessed and billed to Client for the following reasons: (i) late payment; (ii) payment with insufficient funds; or (iii) denied or invalid credit card number. An NSF additional $35.00 fee will be charged for each returned check. FT may re-start or reinstate any such Service, at FT’s sole and absolute discretion, subject to FT receipt of the applicable service fee, renewal fee or other fees, including $95.00 Service restoration fee.
Client understands and agrees that all FT fees are nonrefundable and that FT may change any price, fee, rate at any time.
4. Services This Agreement applies to all Services, whether purchased or utilized separately or as part of a complete solution or packaged bundle. Client purchase of the Services, continued use of the Services, and/or continued access to the Services constitutes your acceptance of this Agreement. FT further reserves the right to modify the Services, at our sole and absolute discretion, either temporarily or permanently, at any time or from time to time, with or without notice to you. You agree that FT shall not be liable to you or any third party for any such modification of the Services and that your continued use of the modified Services, and/or continued access to the modified Services, constitutes your acceptance of any such modifications. FT reserves the right, in its sole and absolute discretion, to refuse any registration, application, order and/or service activation request for any reason or no reason and shall not be obligated to provide any Services to you unless and until FT has received payment of the applicable fees.
You acknowledge and agree that some or all of the Services you purchase or receive from FT may be provided by one or more vendors, contractors or affiliates selected by FT in its sole and absolute discretion. As a part of your Services, FT may provide you access to third-party functionality or services, including, but not limited to, applications, widgets, Rich Site Summary (“RSS”), other types of news, event and industry feeds, calculators, recommended copy, forms and templates that are incorporated or offered as a part of one or more of the Services (collectively, “Third-Party Functionality”). You acknowledge and agree that your use of any Third-Party Functionality to which you are provided access as part of any FT Services is in accordance with the terms of any relevant third-party licenses, agreements and/or terms and conditions. Your failure to abide by any such third-party licenses, agreements and/or terms and conditions may result in the immediate termination of your Services provided by FT. You understand and agree that FT does not control such Third-Party Functionality and is therefore not liable to you or any third party for any issues of any kind relating to issues relating to Third-Party Functionality. FT reserves the right, in its sole and absolute discretion, to terminate, suspend, cancel or alter your access to Third-Party Functionality at any time and without notice to you.
Additionally, the FT website or Services provided may contain links to other Internet websites or resources. You acknowledge and agree that FT is not liable in any way for (i) the availability or accuracy of such websites or resources, or (ii) the content, advertising, or products on or available from such websites or resources. The inclusion of any link on our website or within Services provided does not imply that FT endorses any of the linked sites and you agree to use the links at your own risk.
FT and its subcontractors or vendors make no guarantees with respect to usage statistics or levels of impressions for any services provided. You acknowledge that delivery statistics provided by FT’s subcontractors or vendors will be the official, definitive measurements of such subcontractor or vendor performance on any expressly stated delivery obligations.
5. Term & Termination After the initial term of any recurring Agreement, the Agreement automatically continues in force for a like term. Client may cancel any recurring Agreement during a term for any reason by submitting one (1) calendar month advance written notice via email to accounting@fasturtle.com(i.e., Notice received in January cancels Service at the end of February). All payments previously received by FT are earned and there are no refunds for early termination. FT reserves the right to terminate Agreement because of nonpayment, late payment, or other factors which make FT’s performance impractical. Early termination fees may apply. The Client agrees to be responsible for any and all collections costs that may arise by reason of the Client’s failure to pay FT in full by the fee due date
A. Generally. FT may terminate this Agreement immediately for any or no reason and without notice to you. Without limiting the foregoing, FT reserves the right to suspend or terminate all Services immediately without notice to you if FT determines, in its sole and absolute discretion, that you have failed to comply with your obligations as set forth in this Agreement. In the event of your chargeback by a credit card, charge card or other payment method, or other non-payment by you in connection with your payments of the applicable billing cycle fee, renewal fee or other applicable fee, you acknowledge and agree that all of your Services may be suspended, canceled or terminated, in our sole and absolute discretion and without notice to you.
You are responsible for all fees incurred up to and including the date of termination and upon termination you may receive a final bill reflecting the balance due for any remaining charges and agree to pay by due date all such fees incurred by you and/or via your utilization of the Services. FT will cease charging your credit card, if applicable, for any monthly service fees as of the expiration of the billing cycle in which the termination is effective. Unless otherwise specified in writing by FT, you will not receive any refund for payments already made by you as of the date of termination, regardless of whether any related Services have been performed. If termination of this Agreement is due to your default hereunder, you shall bear all costs of such termination, including any reasonable costs FT incurs in closing your account and you further agree to pay any and all costs incurred by FT in enforcing your compliance with this Section. Upon termination, you must destroy any copy of the materials licensed to you hereunder and referenced herein. You agree that upon termination or discontinuance for any reason, FT may delete all information related to you on the Service, if applicable. In addition to the terms set forth herein, certain FT Services may have additional terms regarding termination, which are set forth in the applicable supplemental service and/or product agreements.
B. Termination of Bundled Services. In addition to the Terms and Conditions set forth herein, if you purchase FT Services which are sold together as a solution or bundled package of Services, any termination relating to any one such solution or bundled package will terminate all FT Services included in such solution or bundled package. Upon the effective date of termination, FT will no longer provide the solution or bundled package to you, any licenses granted to you will immediately terminate, and you must cease using such Services immediately; provided, however, that FT may, in its sole and absolute discretion and subject to your agreement to be bound by the applicable agreements and to pay the applicable fees, allow you to convert certain Services included in the bundled Services to stand-alone Services.
6. Disclaimer Client acknowledges and agrees that your use of the services is solely at your own risk, and that except as expressly provided herein, the services are provided on an “as is” and “as available” basis. FT expressly disclaims any and all warranties and conditions of any kind, express, implied or statutory, including, but not limited to, the implied warranties of title, noninfringement, merchantability and fitness for a particular purpose and any warranties arising from a course of dealing, usage or trade practice. Furthermore, FT does not warrant that the services and/or any information obtained thereby will be complete, accurate, uninterrupted, secure or error free. FT further makes no warranty that the services will meet your requirements, nor does FT make any warranty as to the results that may be obtained from the use of the services.
7. Warranty Disclaimer & Additional Liability Limitations In no event shall FT or its subcontractors, vendors or suppliers be liable for any damages whatsoever (including without limitation, special, incidental, consequential, or indirect damages for personal injury, loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use FT’s work, even if FT has been advised of the possibility of such damages. In any case, FT and its vendors’ and suppliers’ entire liability under any provision of this agreement is limited to the amount actually paid for the Services. Use of FT Service and any reliance by Client upon the Service, including any action taken by Client because of such use or reliance is at Client’s sole risk. FT does not warrant that the Service will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. The Services are provided “as is”. FT expressly disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose and non-infringement.
8. Rights & Permissions Client provided content must be delivered to FT in digital format: i.e. MS Word or text file, images, .jpg, .png, .gif. Client represents and warrants that Client has rights and permissions to use all data, recordings, artwork, written copy and printed materials that may be replicated in website or other content and will not infringe upon any trademark, copyright, contract, property rights and that Client has paid any and all royalties or other charges pursuant to copyright law of the United States, any statute, order, or other law, right or contract governing such materials. FT reserves the right to review and reject any material that contains matter which is libelous, defamatory, obscene, invades the rights of privacy or rights of any individual, or for any other reason at its discretion. Final payment entitles the Client to use completed work only in a manner specified by FT. FT reserves the right and Client agrees to allow FT to use its creative development, Client name, and marks in any future FT advertising and marketing.
9. Work Service Ownership Any proprietary work concerning web-based methodology, techniques, applications, database creation methods, web-presence methods, lead generation techniques, etc., developed by FT shall remain the sole property of FT. Any Service, patents on Service, text, information, trademarks, copyrights, audio, video productions, techniques, applications, database creation methods, web-presence methods, lead generation techniques, etc., developed by Client or its associates shall remain the property of Client. Client email lists will remain the property of Client and email lists will not be used by FT for purposes other than providing FT services to Client.
10. Indemnification Client agrees to indemnify, hold harmless, and defend FT from any actual or alleged breach of any representation or warranty set forth herein.
Client agrees to release, indemnify, defend and hold harmless FT and FT officers, directors, employees, agents, contractors, owners, assigns and affiliates from and against any loss, liabilities, damages, costs, or expenses, including reasonable attorneys’ fees, resulting from any third-party claim, action or demand arising under or relating to:
Client agrees that this indemnification obligation survives this Agreement’s termination or expiration. You agree to give prompt, written notice to FT via email accounting@fasturtle.com upon the receipt of notice of any claim by a third party against you which might give rise to a claim against FT, stating the nature and basis of such claim and, if ascertainable, the amount thereof.
When FT is threatened with a lawsuit or is sued by a third party, FT may seek written assurances from you concerning your promise to indemnify FT. Such assurances may, without limitation, be in the form of a deposit of money by you to FT or its representatives to cover FT ’s fees and expenses, including, but not limited to, reasonable attorneys’ fees, in any such lawsuit or threat of suit. Your failure to provide such assurances shall be considered by FT to be a material breach of this Agreement. FT shall have the right to participate in any defense by you of a third-party claim related to your use of any of FT’s Services, with counsel of FT’s choice. FT shall reasonably cooperate in the defense at your request and expense. You shall have sole and absolute responsibility to defend FT against any claim, but you must receive FT’s prior written consent regarding any related settlement.
11. Alternate Dispute Resolution Any controversy or claim arising out of or relating to this Agreement or the breach thereof, except where at FT’s sole and absolute discretion FT chooses to file a claim in a court for non-payment, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in a court of competent jurisdiction in Maricopa County in the State of Arizona. The place of arbitration shall be Phoenix, AZ. The arbitration shall be governed by the laws of the State of Arizona. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrators, all of their costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
12. Attorney’s Fees In the event that suit is brought, or an attorney is retained by any party to this Agreement to enforce the terms of this Agreement or to collect any money due under this Agreement or to collect money damages for breach of this Agreement, the prevailing party shall be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorney’s fees, court costs, costs of investigation, and other related expenses incurred in connection with bringing such action.
13. Forum Selection For purposes of any proceeding involving this Agreement or any obligation of either FT or Client arising out of or in connection with this Agreement, Client submits to the non-exclusive jurisdiction of the courts of the State of Arizona and of the United States having jurisdiction in Maricopa County, Arizona, and agrees not to raise and waives any objection to or defense based upon the venue of any such court and any objection or defense based upon forum non conveniens. Client agrees not to bring any action or other proceeding with respect to this Agreement or any obligation of either FT or Client arising out of or in connection with this Agreement in any other court unless such courts of the State of Arizona and of the United States for the District of Arizona determine that they do not have jurisdiction in the matter.
14. Delay & Abandonment FT is not responsible for delay in deploy of Services due to Client neglect and/or delay for providing needed content, information, permissions and/or access to items necessary for FT to fulfill Services. FT is not responsible for delay in deploy of Services due to third party neglect and/or delay for providing needed content, information, permissions and/or access to items necessary FT to fulfill Services. An Agreement will be deemed abandoned thirty (30) calendar days after written notice to Client of FT’s unsuccessful reasonable effort to contact Client. No refunds or pro-rations will be made because of delays or abandonment unless otherwise agreed upon by both parties in writing. Upon written request via email to accounting@fasturtle.com and subject to this Agreement, FT will release all completed work if all prices, fees and expenses due to FT have been paid in full.
Client agrees to cooperate fully with FT as needed to allow FT to provide Services and Client will further provide in format FT requests all information, input and feedback requested by FT in the process of providing the Services. If Client ignores any such requests or otherwise fails to provide the requested information, input or feedback within a reasonable amount of time (whereby such reasonable amount of time is to be determined by FT at FT’s sole and absolute discretion.) FT shall then have right to make any related decisions with respect to the Services on Client’s behalf. Client acknowledges and agrees that FT will not be responsible for any consequences related to the alteration, modification and/or interference by Client of the accounts and/or campaigns managed by FT.
15. Client Work Policy FT recognizes that from time-to-time Client may request things outside the scope of deliverables. FT reserves the right to refuse any Service request deemed to be out of scope based on the Agreement entered into by all parties.
16. Entirety of Order At times, FT utilizes emails or PDF forms to capture Service requests from Clients in a more-timely manner, especially during circumstances of travel or limited connectivity. These forms are pending acceptance from FT to be converted to a final processed order for Services and agreement, in which a copy will be provided to Client following the aforementioned acceptance. The final processed order may include additional details regarding the Service at that time that could not be fully formatted into FT alternative forms or agreement.
17. Client Responsibilities
A. Generally. Client shall be responsible for the following (whereby you agree that your failure to perform these responsibilities shall be deemed a material breach of this Agreement):
B. Website Control and Content. Unless otherwise expressly stated herein, you will be solely responsible for the development, maintenance and operation of your Website, including the accepting, processing and filing of customer orders generated through your Website, and handling any customer inquiries, complaints or disputes arising from orders or sales generated through your Website. Backup services are not guaranteed and you agree that FT has no obligation to hold backup information for a specified period of time nor is all backup information guaranteed to be available at all times. If backup services are not available to you or you elect to opt out of the backup services, you agree that FT has no obligation to backup any data related to your Website’s Content, data or operation and you should independently take appropriate steps to maintain such data in accordance with your needs and requirements.
Except as otherwise stated in this Agreement, Client is considered the owner of all Content. During the period that FT provides Services to you pursuant to this Agreement, you hereby grant to FT and its subcontractors a limited, non-exclusive, royalty-free, worldwide license to copy, reproduce, distribute, transmit, display, perform, create derivative works from, modify, and otherwise use your Website and the Content solely for the purpose of rendering the Services hereunder. You also acknowledge and agree that FT reserves the right to use your domain name and your Website screen shots in FT’s portfolio and/or other advertising and promotional materials as provided for above.
C. Client Collection; Use of Visitor Data; Privacy Policy. You are solely responsible for maintaining all your Data that is collected by or disclosed to you in trust and confidence and use and disclose such information solely in accordance with your privacy policy. You must post, maintain and adhere to your privacy policy that informs your Website customers what Visitor Data is collected, how it is used, the effective date of your privacy policy and how customers of your Website can learn of changes to your privacy policy.
18. Client Representations and Warranties Client hereby represents and warrants as follows:
You agree that, if you are using the Services for a third party, you represent and warrant that you have: (i) provided notice to that third party of your intent to purchase the Services; (ii) obtained that third party’s express consent to purchase the Services on its behalf; and (iii) the authority to nonetheless bind that third party as a principal to all Terms and Conditions provided herein. You accept sole and absolute liability for harm caused by the wrongful use of the Services.
19. Privacy, Disclosure and Use of Information FT Privacy Policy is located on our website at https://fasturtle.com/privacy. The Privacy Policy sets forth your rights and responsibilities and our rights and responsibilities with regard to your personal information. You agree that we, in our sole and absolute discretion, may modify our Privacy Policy. We will post any such revised Privacy Policy on our website and any such Privacy Policy is effective upon posting. You agree to periodically review our websites, including the current version of our Privacy Policy. You agree that, by using our Services after modifications to the Privacy Policy become effective, you have agreed to these modifications. You acknowledge that if you do not agree to any such modification, you may terminate this Agreement. We will not refund any fees paid by you if you terminate your Agreement with us except as otherwise expressly provided in one or more of the supplemental service and product agreements. We will not process the personal data that we collect from you in a way incompatible with the purposes and other limitations described in our Privacy Policy. You represent and warrant that you have provided notice to, and obtained consent from, any third-party individuals whose personal data you supply to us as part of our Services with regard to: (i) the purposes for which such third party’s personal data has been collected; (ii) the intended recipients or categories of recipients of the third party’s personal data; (iii) which parts of the third party’s data are obligatory and which parts, if any, are voluntary; and (iv) how the third party can access and, if necessary, correct the data held about them. You further agree to provide such notice and obtain such consent with regard to any third party’s personal data you supply to us in the future. FT is not responsible for any consequences resulting from your failure to provide notice or receive consent from such individuals nor for your providing outdated, incomplete or inaccurate information.
You acknowledge and agree that pursuant to FT ‘s Privacy Policy, FT may make available information you provide or that we otherwise maintain to such public or private third parties as applicable laws require or permit, including, but not limited to, making publicly available, or directly available to third parties, some or all of such information as follows: (i) for inspection by law enforcement officials (including in the case of potential criminal activity); (ii) to respond to criminal and civil subpoenas and court orders that reasonably appear to be valid; (iii) in connection with the sale of all or certain of our assets; (iv) to enforce or apply the terms of this Agreement; and (v) to protect the rights, property or safety of FT, our users or others, whether during or after the term of your use of the Services. FT reserves the right to report activity that it believes to be potentially criminal to the appropriate law enforcement agencies.
You further acknowledge and agree that FT may make publicly available or directly available to third parties, some or all the information you provide for purposes of inspection or for targeted marketing and other purposes as required or permitted by applicable laws.
You hereby consent to any and all such disclosure and the use of guidelines, limits and restrictions on such disclosure or the use of information provided by you in connection with the use of any Services (including any updates to such information), whether during or after the term of your Services. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of information provided by you to FT.
In the event that in applying for any Services you are providing information about a third party you hereby represent and warrant that you have (a) provided notice to that third party of the disclosure and use of that party’s information as set forth in this Agreement and (b) obtained that third party’s express consent to the disclosure and use of that party’s information as set forth in this Agreement.
You acknowledge and agree that communications with FT are not private and may be published either in their entirety or in edited form at any time, at the sole and absolute discretion of FT.
20. Limitation of Liability You acknowledge and agree that FT will not be liable under any circumstances to you or any other party, person or entity for any damages or losses that may result from the following:
FT disclaims any responsibility for any Content, goods and services sold by you or otherwise made available through your Website, or the quality or accuracy of any information on your Website. FT will not endorse, warrant, or guarantee any product or service offered through your Website including, but not limited to, all sales of goods or services, credit card transactions, banking or securities transactions, or any business, service or merchandise agreements. Additionally, the FT website may contain links to other Internet websites or resources (including partner websites or third-party advertising on a FT website). You acknowledge and agree that neither FT nor any third party are responsible or liable in any way for (i) the availability or accuracy of linked websites or resources or (ii) the content, advertising or products on or available from such linked websites. The inclusion of any link on our website does not imply that FT or a third party endorses any of the linked websites, and you agree to use the links at your own risk.
Additionally, FT will not be liable to you for any indirect, special, incidental or consequential damages of any kind, (including, but not limited to, lost profits, goodwill, data, the cost of replacement goods or services, business interruption or other intangible losses), whether foreseeable or not, regardless of the form of action, whether in contract or tort, including negligence, or any other legal theory, even if FT has been advised of the possibility of such damages.
FT’s aggregate liability shall not exceed the total amount paid by you for the Services and you acknowledge and agree that this will be your exclusive remedy under this Agreement and otherwise in relation to your use of the Services. You agree that FT’s entire liability, in law, equity or otherwise, with respect to any Services provided under this Agreement and/or for any breach of this Agreement, is solely limited to the amount you paid for such Services during the term of this Agreement, except as otherwise limited herein. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states FT’s liability is limited to the maximum extent permitted by law.
Unless otherwise specified herein, you acknowledge and agree that any claim or cause of action arising out of or related to this Agreement or any of FT’s Services must be filed within one (1) year after such claim or cause of action initially arose or such claim or cause of action is permanently barred.
You further agree that any dispute or disagreement relating to or arising out of this Agreement or the Services shall be resolved on an individual basis. As such you acknowledge and agree that you may not bring a claim that relates to or arises out of this Agreement or the Services as a plaintiff or a class member in a class action, a consolidated action or a representative action. You acknowledge and agree that class actions, representative actions, private attorney general actions, and consolidation with other actions are not permitted.
You acknowledge and agree that the limitations contained in this Section are an essential element of this Agreement and absent such limitations, FT would not enter into this Agreement or provide Services hereunder. Each Party acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth herein.
21. Waiver No waiver of any provision of this Agreement is effective unless it is in writing and signed by an authorized representative of FT. FT’s remedies under this Agreement are cumulative and not alternative, and the election of one remedy for a breach does not preclude pursuit of other remedies. The failure of FT to require Client’s performance of any Agreement provision does not affect the full right to require such performance at any time in the future. The waiver by FT of any rights arising out of any breach of any Agreement provision shall not be taken or held to be a waiver of the provision itself. Any failure by FT to enforce any of its rights under this Agreement or any applicable laws does not constitute a waiver of such right.
Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an authorized representative and (ii) in an explicit written waiver. No waiver of any rights arising out of a breach of this Agreement will constitute a waiver of rights relating to any prior or subsequent breach of this Agreement.
22. Severability Client agrees that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement. This Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible, consistent with applicable law and consistent with the original intention of the Parties; and the remaining terms and provisions will remain in full force and effect.
23. Force Majeure Neither Party is deemed in default hereunder, nor will it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations under this Agreement due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout or boycott, provided that the Party relying upon this Section takes all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, FT may immediately terminate this Agreement and will have no liability therefrom.
24. Headings and Interpretation The section headings contained in this Agreement are inserted for convenience only and do not affect in any way the meaning or interpretation of this Agreement.
25. Conflicts with Other Agreements In the event of any conflict between this Agreement and the Terms and Conditions governing Client use of any Services provided by FT’s third-party service providers, the Terms and Conditions of this Agreement govern as it relates to any rights, obligations and remedies as between Client and FT.
26. Assignment Client may not assign or transfer, either directly or through a third party, this Agreement or any of its interests, rights or obligations hereunder (in any domain, website, product or service), without the prior written consent of FT. Any attempted assignment in violation of the foregoing provision will be null and void and of no force or effect whatsoever. FT may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without notice to or consent of the Client. This Agreement automatically transfers and remains in effect for new FT ownership and does so regardless of how FT new ownership arises. This Agreement is binding upon and shall insure to the benefit of the Parties hereto and their respective successors and permitted assigns.
27. No Third Party Beneficiaries Client acknowledges and agrees that nothing herein, express or implied, is intended to nor is to be construed to confer upon or give to any person, other than Client, any interests, rights, remedies or other benefits conveyed to Client herein.
28. Survival In the event of termination of the Agreement, Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, and 30 of this Agreement survives such expiration or termination, as applicable.
29. Entire Agreement This Agreement, as well as any additional FT Terms and Conditions, rules, policies and service agreements, together with all modifications thereto, constitute the entire agreement between Client and FT concerning Client use of the Services and any other subject matter related to this Agreement. This Agreement supersedes and governs all prior proposals, agreements or other communications between you and FT (including, but not limited to, any prior versions of this Agreement). You may not waive, modify or supplement this Agreement, in whole or in part, except for written permission or amendment by FT. FT reserves the right, in its sole and absolute discretion, to unilaterally change, modify and/or revise the Agreement, and any incorporated policies, agreements or notices, from time to time. Such changes, modifications or revisions shall be effective immediately upon posting to https://fasturtle.com/terms-conditions and it is implied you have accepted, and to be apprised of and bound by, any such modifications or revisions to the Agreement through your continued use of the Services.
30. Notice All mail Notices from FT to you are deemed effective when: (i) sent by certified mail, return receipt requested or by Federal Express or other recognized overnight delivery service to your last known mailing address; (ii) sent via email to your last known Customer contact email address; (iii) sent via fax to your last known fax number; or (iv) posted on https://fasturtle.com and/or any of the applicable pages linked thereto, as updated from time to time.
When you provide contact information to FT, you agree that FT may use this information to contact you in any format or manner FT chooses. FT may, but has no obligation to, send a single notice by various means of delivery (i.e., fax, email, certified mail or express mail). In no event shall FT be liable to you for choosing to send notice in one manner or format over another.
You authorize FT to contact you via the contact information provided in your account information that FT deems is of potential interest to you. Notices and announcements may include commercial emails, telephone solicitations and other notices describing changes, upgrades, new products and services or other information pertaining to Internet security or to enhance your identity on the Internet and/or other relevant matters. You shall give Notice to FT by contacting us via email to accounting@fasturtle.com.
SMS Agreement
By engaging with Fasturtle as a client, you approve receipt of SMS messages related to project updates and additional Fasturtle notifications. Reply STOP at anytime to cancel.
Call Tracking Services Agreement
In addition to the terms set forth in the FT Master Services Agreement, the following additional terms and conditions shall apply to any and all Client purchases of and/or use of Call Tracking Services offered by FT.
Call tracking/Click-to-Call. If you choose to utilize our marketing program or conversion tracking dashboard, calls will be recorded for tracking purposes. 250 call tracking minutes (CTM) per month are included with your Marketing Program Account. CTM in excess of 250 per month will be charged $.10 per minute. By use of FT Call Tracking Services, you give FT the express authorization to track and record certain calls that relate to your advertising, search engine optimization and/or other FT Services. Regardless of usage, minimum monthly fee applies, and unused minutes do not rollover. All phone numbers associated with any FT phone number Call Tracking services are acquired by FT or its subcontractors or vendors on behalf of Client and as such, are registered to and are controlled exclusively by FT. You acknowledge that you have no claim of ownership or claim of use as it relates to each phone number. Ten local phone numbers per month are included in your Marketing Program Account. Any local phone numbers in excess of ten per month will be charged at $10.00 per local phone number. Any toll-free phone numbers that are substituted for local phone numbers in your Marketing Program Account will be charged at $5 per toll free number. Any toll-free numbers in excess of ten per month will be charged at $15.00 per toll-free number. You agree to submit any claims or disputes regarding any charge to your account in writing to FT via email to accounting@fasturtle.com within thirty (30) days of such charge otherwise such claim or dispute will be waived, and such charge will be final and not subject to challenge.
DIY Marketing Platform Users
If you choose to utilize our marketing program or conversion tracking dashboard, calls will be recorded for tracking purposes. 500 call tracking minutes (CTM) per month are included with your Marketing Platform Plan. CTM in excess of 500 per month will be charged $20 for an additional block of 500 minutes. By use of FT Call Tracking Services, you give FT the express authorization to track and record certain calls that relate to your advertising, search engine optimization and/or other FT Services. Regardless of usage, minimum monthly fee applies, and unused minutes do not rollover. All phone numbers associated with any FT phone number Call Tracking services are acquired by FT or its subcontractors or vendors on behalf of Client and as such, are registered to and are controlled exclusively by FT. You acknowledge that you have no claim of ownership or claim of use as it relates to each phone number. Ten phone numbers per month are included in your Marketing Platform Plan. Any account that exceeds ten phone numbers per month must purchase an additional block of 10 numbers at $20 per block. Twenty-five hundred email sends per month are included in your Marketing Platform Plan. Any account that exceeds twenty-five hundred email sends per month must purchase an additional block of twenty-five hundred emails at $20 per block. Two hundred and fifty texts per month are included in your Marketing Platform Plan. Any account that exceeds two hundred and fifty texts per month must purchase an additional block of two hundred and fifty texts at $20 per block. 10GB of file storage is included in your Marketing Platform Plan. Any account that exceeds 10GB of file storage per month must purchase an additional block of 10GB of file storage at $20 per block. One listing per month is included in your Marketing Platform Plan. Any additional listings must be purchased at $70 per listing. 500 published social posts per month are included in your Marketing Platform Plan. Any account that exceeds 500 published social posts per month must purchase an additional block of 500 published social posts at $20 per block. 10 social profile connections per month are included in your Marketing Platform Plan. Any account that exceeds 10 social profile connections must purchase an additional block of 10 social profile connections at $20 per block. Any additional overages will be charged on your subsequent months invoice.
Paid Advertising Services Agreement
In addition to the terms set forth in the FT Master Services Agreement, the following additional terms and conditions shall apply to any and all Client purchases of and/or use of various online tools and services offered by FT related to Paid Advertising Service(s) whereby Client desires to advertise and drive traffic to Client’s website, services or products, and pay for advertisement listings to appear in search engine results, on social media, other forms of media, applications , and/or devices (collectively referred to herein as “Advertising Services”).
Advertising Services include any advertising which may be categorized as Pay Per Click Services (“PPC Services”), Pay Per Impressions Services (“PPM Services”), Pay Per Action Services (“PPA Services”), and Pay Per Call Services. Advertisements managed through these Advertising Services may appear on any variety of media, including but not limited to Internet search engine results. Other media types include content networks such as online news or article sites and online video sites, social media sites etc. Registering and/or ordering Advertising Services does not in any way guarantee that all or any of the search term keywords will be accepted by FT or a third-party provider. FT reserves the right, at any time and from time to time to reject and/or remove any keywords submitted by Clients. FT reserves the right to reject any advertisements and/or posting and promotion for Clients for any reason, including those products and/or advertisements deemed to be inappropriate in any way. This includes advertisements or links to pornography, violence, vulgar language, dating/personal ad sites, mp3 sites, gambling, racial/hate promotion, pharmacy, foreign language, etc. Unless otherwise expressly agreed to between Client and FT, it will be Client’s responsibility to monitor, manage and respond to all messages and commentary.
You acknowledge and agree that FT reserves the right to use third-party service providers (the “Service Provider”) in providing the Advertising Services. You agree to submit any claims or disputes regarding any charge to your account in writing to FT via email to accounting@fasturtle.com within sixty (60) days of such charge otherwise such claim or dispute will be waived and such charge will be final and not subject to challenge. If you limit FT’s access to needed paid media accounts, via changing your login credentials or otherwise, you will still be responsible for paying FT the related monthly service fees and any necessary ad spend allocated to paid media providers. Client agrees to the requirement FT is to maintain sole administrative rights for any media Service Provider account used to provide Advertising Services, and Client is to have no access to any such media Service Provider account unless, at FT’s sole and absolute discretion, FT approves Client access. Upon cancellation of Advertising Services FT may, but has no obligation to, close any media provider account used to provide Advertising Services.
For Advertising Services, positioning of online service related advertisements is at the sole and absolute discretion of FT and/or FT’s Service Provider. Moreover, the online advertisements are subject to the approval of FT and its Service Provider. FT and its Service Provider reserve the right to reject, cancel, modify or remove, without notice to you, any advertisement, or related keyword, webpage, link, space reservation, position commitment or any element thereof, at any time, for any reason whatsoever in its sole and absolute discretion (including belief by FT and/or its Service Provider that such advertisement, keyword, etc., may subject FT or its Service Provider to any criminal or civil liability).
In the event Client budget is not entirely spent during a given billing period, unspent dollars will roll over into the following billing period, except in cases where Client is past due on payments for any FT Services in which case FT at its sole and absolute discretion will determine if roll over will be allowed or unspent dollars will be due to FT. In cases of roll over, at FT’s sole and absolute discretion, Clients will still be charged budget fee in advance for the next billing period. Budget includes FT management fees not to exceed 30% of agreed upon Google or Social Media Ad spend and Service Provider fees.
Client acknowledges and agrees that FT or any of its Service Providers do not perform any type of intellectual property search or screen on any keyword phrases. Consequently, Client accepts that it assumes all risk and liability for using recommended keyword phrases that are generated through provided applications or are otherwise recommended by FT. FT may, in its sole and absolute discretion, reject, cancel or remove at any time any Advertisement from the Advertising Services for any reason without prior notice to you. FT will not be liable in any way for any rejection, cancellation or removal of any Advertisement. Client’s lack of a live Website will not defer charges or fees for the Advertising Services.
Reputation Services Agreement
In addition to the terms set forth in the FT Master Services Agreement, the following additional terms and conditions shall apply to any and all Client purchases of and/or use of various online tools and services offered by FT related to Reputation Services related to solutions that enable customer to solicit and/or distribute customer reviews (collectively referred to herein as “Reputation Services”).
You are responsible for managing the Reputation Services and for making the necessary changes to help improve your online reputation, and as such FT is not responsible for the management of and/or any of the information that is provided in conjunction with the Service. FT is also not responsible for any negative reviews or comments regarding your online reputation.
Search Engine Optimization Services Agreement
In addition to the terms set forth in the FT Master Services Agreement, the following additional terms and conditions shall apply to any and all Client purchases of and/or use of various online tools and services offered by FT related to search engine optimization (“SEO”) including but not limited to, the Local SEO, Starter SEO, Professional SEO, Growth SEO, Scale SEO and Custom SEO services offered by FT. (collectively referred to herein as “SEO Services”).
First month of SEO Services billed for program setup. Remainder of billing commences after setup has been completed or no later than ninety (90) calendar days after order date of Service, unless specifically approved otherwise by FT. No extensions in billing will be granted due to Client delays. In situations where SEO cannot launch due to the dependency of a FT website launch where Client is not delaying the process, FT grants an extension of up to the lesser of a.) ninety (90) additional calendar days or b.) FT website launch completion date.
You agree that FT may place limitations and restrictions on the access and/or use of the SEO Services including, but not limited to, the access of the SEO Services and the number of changes that may be made within the SEO Services. The limitations and restrictions may change without notice.
You acknowledge and agree that FT reserves the right to use third-party service providers (the “Service Provider”) in providing the SEO Services. Client acknowledges and agrees that FT or any of its Service Providers do not perform any type of intellectual property search or screen on any keyword phrases. Consequently, Client accepts that it assumes all risk and liability for using recommended keyword phrases that are generated through provided applications or are otherwise recommended by FT.
Service Support Request Agreement
In addition to the terms set forth in the FT Master Services Agreement, the following additional terms and conditions shall apply to any and all Client purchases of and/or use of Service Support offered by FT.
The Service Support request form is located at fasturtle.com/contact/support and is to be used by Client to initiate all support requests and Client is to specify relevant issues in clear detail. Support business day hours of operation are Monday through Friday 8:00 AM to 5:00 PM, excluding weekends and holidays. Should Client not initiate a Service Support request via this form, regardless of how communication of desired Service Support is provided to FT, the Client agrees to said Service Support request submission and fees located on the website.
Standard requests may take up to 3-4 business days to be acknowledged. Fully addressing and resolving the support request may take longer. Expedited requests may take up to 1-2 business days to be acknowledged. Fully addressing and resolving the support request may take longer. Support Services are billed C.O.D. Client is fully responsible for all billable time spent researching and attempting to resolve such items.
Social Media Services Agreement
In addition to the terms set forth in the FT Master Services Agreement, following additional terms and conditions shall apply to any and all Client purchases of and/or use of various online tools and services offered by FT related to Social Media Service(s) including but not limited to platforms such as Facebook, Twitter, LinkedIn and Instagram whereby Client desires to seek services related to Social Media account creation, management and/or posting (collectively referred to herein as “Social Media Services”).
Unless otherwise expressly agreed to between Client and FT, it will be Client’s responsibility to monitor, manage and respond to all messages and commentary.
Web Design, Development, and/or Hosting Agreement
In addition to the terms set forth in the FT Master Services Agreement, the following additional terms and conditions shall apply to any and all Client purchases of and/or use of various online tools and services offered by FT related to Web Design, Development and/or Hosting Service(s) including but not limited to Starter Website and Professional Website whereby Client desires to seek services related to Web Design, Web Copywriting, Web Development, and Web Hosting.
Copyright to the finished assembled work of software and Databases produced by FT and its subcontractors is owned by Client except in the situation within a SAAS application (e.g. Fastsite). Website and any other SAAS Services are treated as a license agreement and are not transferrable. Licenses grant application use to house content and host that content online during the duration of the Services. In situations where this work is not within a SAAS application, upon final payment of this Agreement, Client is granted ownership of the text, images and similar content contained in any website except rights to proprietary photos, proprietary graphics, proprietary work-up files, proprietary source code, proprietary documentation of the Databases, and proprietary Software and proprietary tools or computer programs are specifically not transferred to Client, and remain the property of their respective owners. FT and its subcontractors retain the right to display graphics and other Web design elements as examples of their work in their respective portfolios. Client grants FT the right to brand all FT design and development with “Website by Fasturtle” in the footer of the website. Client reserves the right to purchase the removal of this branding for $500.
Cancellation of Hosting Services will result in removal of all website files from FT servers.
Clients must comply with the current bandwidth, data storage and other limitations on the Services. Clients may not use the Services in a manner that places a disproportionate burden on the network or impairs the Service received by other Clients. If so, FT reserves the right to suspend Services until a solution is agreed to by both parties.
In cases where FT provides application development service for a Client’s website, any error(s) that surface on that website directly attributable to the development service FT implemented and pushed live from production on said website will be corrected by FT at no cost if, and only if, Client notifies FT via email to pm@fasturtle.com of the error(s) within thirty (30) calendar days from time the website development service causing said error(s) was pushed live from production. It is Client’s sole responsibility to test, verify, and confirm within this thirty (30) day period development work directly attributable to FT is correctly functioning. Otherwise, Service Support Request Agreement applies.
FT utilizes industry standard precautions to ensure the integrity of each site. FT is not liable for malicious acts of others. FT will attempt to restore any website damaged from random and generalized attacks or targeted attacks for the appropriate standard hourly support prices and fees as outlined in the Support Services agreement.