TERMS OF AGREEMENT
These are the Terms of Agreement between Search Engine Optimist and the individual or entity identified on the Service Agreement as “Client.” The party identified on the Service Agreement as Client is hereinafter referred to as “Client.” Client and Search Engine Optimist are sometimes referred to collectively in this Agreement as the “Parties.” Client desires to engage Search Engine Optimist in specific Services, the scope of which is set forth on the Agreement. The Service Agreement shall be, and hereby is, incorporated into this Agreement by this reference. To carry out these purposes, the Parties agree as follows:
1. SECTION ONE. Definitions
Base Price: The price set forth on the Agreement for one-time services. Accordingly, this term does not apply to monthly monitoring, hosting and Maintenance, call tracking or other ongoing Services.
Contract Term: The initial term set forth on the Agreement for any Services for which the Client will be billed on a recurring basis.
Custom Content: Any content created by Search Engine Optimist or its partners for the Services provided to Client. This includes written, audio, video or graphic works and associated elements, including coding and command sets, online screen displays (such as screen designs, formats, text, hyperlinks, layouts, typesets, coloration), articles and website content created by Search Engine Optimist.
Final Users: Those of the general public who are the intended audience for the Product.
Search Engine Optimist Materials: Any Search Engine Optimist-owned content or third-party materials licensed by Search Engine Optimist, provided by Search Engine Optimist to Client for use in the Product, including but not limited to: Custom Content, any stock images, text, video, graphic designs, audio content, and associated elements, including coding and command sets, and online screen displays (such as screen designs, formats, text, hyperlinks, layouts, typesets, coloration).
Maintenance: Modifications to the content of the Web Site, including but not limited to (a) updating or changing photos, videos, audio, (b) updating or changing text. Maintenance does not include adding pages to the Web Site or performing any work outside the scope of the Service Agreement.
Service Agreement: An order form for Services submitted by Client and accepted by Search Engine Optimist.
Materials: Client-provided Materials, Custom Content, and Search Engine Optimist Materials.
Client-Provided Materials: All content provided by Client to Search Engine Optimist under this Agreement for execution of the Services, including but not limited to: textual, graphic, video, and audio materials.
Product: Product is a conceptual term, used to reference the logo, Web Site, or other resource (oppose to performance such as hosting or consulting) that is the subject of the Services set forth on the Service Agreement.
Services: Those Search Engine Optimist Services set forth in the Service Agreement, which may include and not be limited to: search engine optimization (SEO), search engine marketing (SEM), Web Site development, Web Site hosting, graphic design, logo design, marketing consultations, development of marketing materials, advertising which may include but not be limited to video montages, radio ads, TV commercials or any other service performed by Search Engine Optimist for the benefit of creating a Product and/or maintaining a Product.
Web Site: An internet site developed by Search Engine Optimist pursuant to a Service Agreement, not including accessories such as blogs, shopping carts, newsletters, newsfeeds, forums, databases, directories, email accounts, etc. unless such accessories are specifically set forth in the Service Agreement.
2. SECTION TWO. Client Relationship with Search Engine Optimist
2.1. This Agreement between Search Engine Optimist and the individual or entity identified on the Service Agreement as “Client” contains the terms and conditions for Search Engine Optimist to provide Services to Client.
2.2. Unless otherwise agreed in a separate, written agreement with Search Engine Optimist, this Agreement is the sole agreement between the Parties.
2.3. This Agreement is legally binding.
3. SECTION 3. Accepting the Agreement
3.1. No Services shall be provided to Client by Search Engine Optimist unless Client accepts the terms of this Agreement.
3.2. Acceptance is given by:
3.2.1. Entering into a Service Agreement with Search Engine Optimist.
3.2.2. By using the Service. You understand the use of any Service provided by Search Engine Optimist will be treated as acceptance of this entire Agreement.
3.3. You may not use the Service and may not accept this Agreement if you are not of legal age to accept this Agreement or are barred from receiving the Services under laws of the U.S. or other countries including the country in which you are resident or from which you use the Service.
4. SECTION 4. Services
4.1. Search Engine Optimist will provide the Services as set forth on the Service Agreement.
4.2. Client Cooperation
4.2.1. Search Engine Optimist’s obligation to provide Services is conditioned on Client complying with all terms of payment.
4.2.2. Search Engine Optimist may require Client-Provided Materials to provide the Services to Client. Client understands that the Services may be contingent upon receipt of Client-Provided Materials by Search Engine Optimist.
4.2.3. Collaboration between Parties is often necessary to provide the Services. Client understands that Search Engine Optimist is not responsible for any delays due to the collaborative process, which include Client’s review of the Product and/or the exchange of materials. Client agrees to review any material needing Client review and give approval or revisions in a timely manner upon receipt of the material from Search Engine Optimist.
5. SECTION 5. Payment
5.1. Charges. Client will pay for the Services as set forth on the Service Agreement. Payment does not include applicable taxes. Client is responsible for all applicable taxes, excluding income tax associated with the sale of the Services.
5.2. Payment. Certain Services require customized and/or collaborative development to occur between the date the Service Agreement is executed and the date the Service is completed. Also, certain Services may be billed as a one-time charge, and other Services may be billed on a recurring basis.
5.3. Payment Schedule. The payment schedule for the Services (e.g., recurring payments or one-time payments) is set forth on the Service Agreement. Charges may be invoiced and/or payable prior to Services being performed. The Service Agreement will act as the invoice for all payments due upon execution of the Service Agreement and for payments due upon the delivery period (Net/14, unless agreed otherwise) after execution of the Service Agreement, as will be set forth on the Service Agreement. For any other one-time payment, Search Engine Optimist will provide Client with an invoice. Search Engine Optimist will provide Client with a monthly invoice for all charges that are billed on a monthly basis. Other than any payment due upon execution of the Service Agreement or within the delivery period thereafter as set forth in the Service Agreement (which must be paid when due), Client agrees to pay all invoices in full within the delivery period of the payment date set forth on the invoice. If full payment of any charge is not made within the delivery period of the payment date, Client may thereafter be charged up to the maximum legally permissible interest rate on any past due balance.
5.4. Services that extend after Contract Term. Search Engine Optimist will provide Services, the duration of which is pursuant to the Service Agreement. Unless Client notifies Search Engine Optimist in writing thirty (30) days prior to expiration of the Contract Term, or unless otherwise terminated by Search Engine Optimist, the terms of this Agreement will continue in full effect as to any ongoing Services but on a month-to-month basis, with payment being at the rate it was in the last month of the Contract Term (subject to future price adjustments).
5.5. Call Tracking. Client will pay a one-time set up fee for the number(s) as set forth in the Service Agreement, together with a monthly fee as provided in the Service Agreement. If usage of any tracking method exceeds the agreed upon amount, Client agrees to be responsible for any overage charges in addition to the regular monthly fee. Client will receive an invoice for this overage, and Client agrees to pay within fourteen (14) days of the payment date set forth therein.
6. SECTION SIX. Materials
6.1. Use of Materials. Client represents and warrants that Client owns or has acquired the right to provide and use the Client-Provided Materials, and that the use, reproduction, distribution, and transmission of the Client-Provided Materials does not: (1) infringe or misappropriate any copyright, patent, trademark, trade secret, or any other proprietary rights of a third party; (2) violate any criminal laws; (3) constitute false advertising, unfair competition, defamation, an invasion of privacy, violate a right of publicity, or violate any other law or regulation.
Client understands that while Search Engine Optimist may be developing a Product, (and depending on the Services, possibly hosting a Web Site on Search Engine Optimist’s server) and therefore making use of the Materials therein, Search Engine Optimist is not responsible for providing Custom Content or Search Engine Optimist Materials unless so stated in the Service Agreement, nor is Search Engine Optimist giving Client any advice or opinion of the legality of the use of the Materials in the Product.
6.2. Indemnification. Client agrees to indemnify and hold Search Engine Optimist harmless from any claim, dispute, lawsuit, damages or loss, including attorney’s fees, arising out of the Client Provided Content, the use of the Client Provided Content, and any facts or alleged facts which, if true, would constitute a breach of the above representations or warranties. Further, Search Engine Optimist reserves the right to refuse, modify, substitute or remove any Materials or other information that may (1) be deemed to violate the privacy, personal, proprietary, or contractual rights of third parties, or (2) be contrary to Search Engine Optimist’s search engine optimization practices, or (3) defame, expose to legal liability, or otherwise harm Search Engine Optimist or its affiliates.
7. SECTION SEVEN. Ownership and License
7.1. Domain name and Web Site.
7.1.1. Registration of Domain Name. If Search Engine Optimist registers a domain name for the Client’s Web Site as part of the Services, then Search Engine Optimist will maintain such domain name registration on Client’s behalf during the term the Service is provided. If Client chooses to use an existing domain name as part of the Web Site, Search Engine Optimist will provide Client reasonable assistance in directing the domain name to the Web Site.
7.1.2. Ownership of Domain Name and Programming/Presentation of Web Site. Any domain name that Search Engine Optimist registers or any existing domain name that Search Engine Optimist directs to the Web Site as part of the Services, as well as the programming, coding and command sets, and online screen displays provided by Search Engine Optimist, and the presentation and arrangement of the Materials, all of which make-up the Web Site, are the sole and exclusive property of Search Engine Optimist, PROVIDED, that after the design phase, and only so long as Client is not delinquent on any payment for Services, Client may request in writing a transfer of ownership (not transfer of hosting Services) of the domain name from Search Engine Optimist to Client. Upon such a written request, Search Engine Optimist will surrender ownership of the domain name registration to Client, but Client is responsible for facilitating the transfer of ownership, including but not limited to paying all transfer fees if applicable.
7.1.3. Transferring Domain Name after expiration of Contract Term. After the expiration of the Contract Term, the Client may request in writing that the domain name registration be transferred to Client, in which case Search Engine Optimist will provide Client with reasonable assistance in transferring the domain name registration. Client is responsible for any costs associated with transferring registration and pointing the domain name to a third-party host. After transfer, Search Engine Optimist will have no other obligation or liability with respect to Client’s domain name.
7.1.4. Call Tracking. If Search Engine Optimist is providing call tracking as part of its Services, it is understood that Client does not own the phone number(s) provided for such Services, rather, Client is merely being provided with the right to receive calls from the numbers in furtherance of Client’s business, on the terms set forth herein and in the Service Agreement. So long as Client is not delinquent on any payment for Services, Search Engine Optimist will provide Client with access to up-to-date Call Tracking Reports. Search Engine Optimist will provide Client with a password to access the Call Tracking Reports.
7.2. License. The Client grants to Search Engine Optimist and Search Engine Optimist’s agents a revocable, non-exclusive worldwide limited license to use, reproduce, modify, make improvements to, publish, store and archive, encode, transmit, and publically display the Materials for the purpose of fulfilling the terms of the Service Agreement.
8. SECTION EIGHT. Hosting/Maintenance (Applicable to Hosting Services Only)
8.1. Hosting Services. Hosting Services will include simply providing the Client’s Web Site with a connection to the internet, and Maintenance requested by Client in accordance with section 8.2.
8.2. Hosting Fee. The Client will pay Search Engine Optimist to host the Web Site in an amount as set forth in the Service Agreement (the hosting fee). The hosting fee will commence when the Web Site is approved by Client. So long as the Web Site is being hosted by Search Engine Optimist, Client may want Maintenance to be performed on the Web Site, and in such a case, Client agrees to provide Search Engine Optimist with the updated or additional Client-Provided Materials, in electronic format, to be incorporated into the Web Site, and Client agrees to notify Search Engine Optimist of obsolete Materials to be deleted from the Web Site.
Included in the monthly hosting fee is one hour of Maintenance per month provided by Search Engine Optimist or its agents. Any Maintenance work that exceeds the inclusive one hour will be billed and invoiced to Client on an hourly-rate basis, at a rate not less than One Hundred and Twenty-five Dollars ($125.00) per hour. This hourly rate is subject to future adjustments, of which Client will be notified in writing prior to adjustment. Invoices will be paid within fourteen (14) days of the payment date set forth therein.
9. SECTION NINE. Duties of Client
9.1. Provide Materials to Search Engine Optimist. Client will provide to Search Engine Optimist, in a commercially reasonable period so as not to unreasonably delay Search Engine Optimist’s performance of the Services, all Client-Provided Materials and other information necessary for Search Engine Optimist to perform the Services. Search Engine Optimist is not responsible for providing any Search Engine Optimist Materials or Custom Content, unless otherwise set forth on the Service Agreement.
9.2. Type of Materials and information provided. Client agrees to acquire all licenses, permits, and permissions necessary for Search Engine Optimist to use, publically display, modify, make improvements to, publish, store and archive, encode, transmit and reproduce the Client-Provided Materials.
9.3. Commercial Dissemination. Client will not resell, sublicense, or otherwise generate income from the Services, Custom Content, or the Search Engine Optimist Materials, other than making the Product available to Final Users as contemplated under the Service Agreement. However, this Agreement does not prohibit Client from passing the costs of its Final Users’ licenses onto Client’s Final Users.
10. SECTION TEN. Default and Termination
10.1. Events of Default. It shall be an event of Client’s default if (1) Client fails to make any payment as obligated under this Agreement, the Service Agreement, or any invoice; (2) Client breaches any term of this Agreement; (3) Client or Final Users expose Search Engine Optimist to legal liability or otherwise act in a manner reasonably likely to harm Search Engine Optimist’s business interests.
10.2. Termination. Search Engine Optimist may, in its sole discretion, immediately terminate this Agreement if any event of default occurs. If Search Engine Optimist amends the Agreement pursuant to Section 18 in a manner that materially alters the nature of the Services provided, then Client may immediately terminate the Agreement upon providing written notice of termination to Search Engine Optimist within thirty (30) days following amendment.
10.3. Obligations upon Termination. Upon termination of this Agreement, Client shall (1) deliver to Search Engine Optimist any and all Search Engine Optimist Materials and Custom Content in Client’s possession or control; (2) cease and desist from using any Search Engine Optimist Materials, Custom Content, and any Product element not owned by Client that is not specifically licensed by Search Engine Optimist to Client, and any other intellectual property of Search Engine Optimist or a third party licensor.
10.4. Remedies upon Default. Upon any event of default, Search Engine Optimist reserves the right to suspend or terminate Search Engine Optimist’s Services, and Search Engine Optimist may (1) cease any work in designing, developing, or other Services relating to arriving at completion of the Product; (2) cease the call tracking, Maintenance, monitoring, and other such Services; (3) shut down the Web Site from the World Wide Web; (4) demand delivery from Client any Search Engine Optimist Materials and Custom Content in Client’s possession or control; (5) declare the remaining balance of any or all Service Agreements immediately due and payable; (6) Recover Search Engine Optimist’s actual damages incurred by reason of such breach, including costs and attorney’s fees; (7) Obtain injunctive relief to prevent the unauthorized disclosure or use of the confidential material or to otherwise enforce the terms of the confidentiality agreement; and (7) Pursue any other remedy available at law or in equity.
11. SECTION ELEVEN. Confidentiality
11.1. Confidential Information. During the term of this Agreement, Client and Search Engine Optimist agree to keep confidential, and to use only for purposes of performing under this Agreement, any proprietary or confidential information of the other party disclosed pursuant to this Agreement which is appropriately marked as “confidential.” Confidential information shall also include information that, to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, could be considered of a proprietary or confidential nature. Disclosure of confidential information to third parties by Search Engine Optimist for purposes of performing under this Agreement does not constitute a breach of this provision. Information will not be deemed confidential hereunder if such information is (a) known by the receiving party at the time of disclosure as evidenced in writing; (b) rightfully obtained from a third party who has the right to disclose it; (c) publically known or publically available through authorized disclosure; or (d) ordered to be disclosed by a court of competent jurisdiction or authorized government agency, provided that the receiving party has given the disclosing party prompt notice so the disclosing party has an opportunity to defend, limit, or protect against such disclosure.
12. SECTION TWELVE. Representations/Warranties
12.1. Client’s Representations and Warranties. Client is solely responsible for its acts or omissions related to this Agreement and the acts or omission of its Final Users. Client represents and warrants to Search Engine Optimist that:
12.1.1. Client owns or has full lawful power and authority to provide and use the Client-provided Materials as contemplated herein, and that such provision and use of the Client Provided Materials does not and will not violate any intellectual property or other proprietary rights of any third party or create any liability to any third party;
12.1.2. The Client Provided Materials do not contain any matter that is false, offensive, deceptive or defamatory, or which may cause injury or result in damage to Search Engine Optimist or any third party;
12.1.3. The Client Provided Materials do not contain any bugs, viruses or malicious code that may cause injury or result in damage to Search Engine Optimist or any third party;
12.1.4. Client will comply with all applicable laws, rules, and regulations regarding any professional ethics governing Client’s conduct, and regarding any advertising in its performance under this Agreement, and that the subject matter of the Client-Provided Materials and the Services will be limited to the scope of business typically performed by Client. Client agrees and acknowledges that any breach of its representations or warranties herein is a material breach of this Agreement.
12.2. Indemnification & Hold Harmless. Client shall defend, indemnify and hold harmless Search Engine Optimist from and against any and all third party claims, actions, causes of action, liabilities, damages, costs, and expenses, including attorney’s fees, arising out of or related to any facts or alleged facts which, if true, would constitute a breach of these representations and warranties.
12.3. Search Engine Optimist’s representations and warranties. Search Engine Optimist represents and warrants to Client that it is authorized to enter into this Agreement, and that it will deliver the Services in a commercially reasonable manner and without undue delay. Client acknowledges and agrees that Search Engine Optimist has made no guarantees, representations or warranties to Client regarding the results or performance of the Services, including but not limited to, the quality of the Services, the performance of the Services or Product, or the quality or volume of internet traffic or business the Services will generate.
13. SECTION THIRTEEN. Limitation of Liability
13.1. Search Engine Optimist, its affiliates and its agents’ entire liability hereunder, if any, for any claim made against them (or any one of them) for damages relating to this Agreement whether based in contract or tort (including negligence) shall be limited to the amount of charges paid by Client relative to the period of occurrence of the events which are the basis of the claim. In no event will Search Engine Optimist, its affiliates or its agents be liable for any lost profits or any consequential, exemplary, incidental, or indirect or special damages, arising from or in any way related to this Agreement, or a Agreement, or relating in whole or in part to the Client’s rights hereunder or the use of or inability to use the Services, even if advised of the possibility of such damages. The limitation of liability shall apply even if any express warranties set forth herein fail of their essential purpose.
14. SECTION FOURTEEN. Disclaimer
14.1. Web Site, Hosting, Search Engine Optimization Services, specifically. Client acknowledges and understands that certain software used by internet users may not be capable of supporting certain features or functionality which may be included in a Web Site. Search Engine Optimist shall have no liability whatsoever for any claim relating to any internet user’s inability to access the Web Site properly or completely or for any claim relating to any errors or omission in the Services or Product. Client understands that Search Engine Optimist’s search engine optimization service does not include paid search engine and directory submission fees. Fees must be paid directly to these search directories for review and inclusion. Search engine companies change their ranking algorithms periodically and Client understands that Search Engine Optimist is not and cannot guarantee the ranking of Client’s Web Site on any particular search engine. Client also understands that Search Engine Optimist’s server may temporarily shut down or temporarily cease operations accidentally or due to unintended technological reasons, and Search Engine Optimist is not and cannot guarantee that the Services will be provided without such interruptions. Search Engine Optimist will act within a commercially reasonable time to restore the server or the Web Site (provided it is hosting the site) in a commercially reasonable time. Client agrees that any such temporary interruptions do not constitute a default of this Agreement or the Service Agreement by Search Engine Optimist.
By hosting the Web Site, Search Engine Optimist is merely providing the Client with a connection to the internet, and Search Engine Optimist is not responsible for destruction, theft, manipulation, or other damages to the Web Site or any Materials that make-up the Web Site, due to hacking, virus’, or similar cyber intrusion.
14.2. The Product, generally. The Product and Search Engine Optimist’s partners’ concomitant Services related to the publication and delivery thereof are provided “AS IS”, without warranty of any kind, express or implied, including, but not limited to, warranties of performance, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currentness and delays. Neither Search Engine Optimist nor its affiliates or agents make any warranty as to the results that may be obtained from the Product, that access to the Product will be uninterrupted or that the Product will be error free.
15. SECTION FIFTEEN. Limitations of Claims
15.1. Other than claims by Search Engine Optimist relating to charges, fees, or other money owed by Client to Search Engine Optimist, no claim, regardless of form, which in any way arises out of this Agreement, may be made, nor any action based upon such claim brought, by either party more than one (1) year after the Agreement terminates.
16. SECTION SIXTEEN. Assignment
16.1. Assignment Of Obligations. Client’s rights and obligations hereunder may not be assigned or transferred in whole or in part by operation of law or otherwise, without Search Engine Optimist’s prior written consent. Search Engine Optimist may, upon prior written notice to Client, assign or transfer this Agreement or any rights and obligation hereunder to an affiliate, third party successor to all or substantially all of the business, stock or assets of Search Engine Optimist, or to any other third party without the Client’s consent.
17. SECTION SEVENTEEN. Indemnity
17.1. Client is solely responsible for any liability arising out of or related to the Client Provided Materials, as well as Client’s use of the Product for any purpose. Client agrees to indemnify and hold harmless Search Engine Optimist from and against any and all liabilities, losses, damages, costs, and expenses, including reasonable attorney fees and experts’ fees, associated with any claim or action brought against Search Engine Optimist related to or arising out of the Client Provided Materials and Client’s use of the Product for any purpose. This indemnification agreement will survive termination of this Agreement.
18. SECTION EIGHTEEN. Modifications
18.1. This Agreement may be amended at any time and from time to time, but any amendment must be in writing and signed by each Party. From time to time, Search Engine Optimist may need to amend, add or delete Agreement terms to address sudden technological, operational, or regulatory changes affecting delivery of the Services. Therefore, notwithstanding anything to the contrary herein, Client agrees that Search Engine Optimist may amend the Agreement, subject to the Client’s termination right set forth in Section 10.2.
19. SECTION NINETEEN. Additional License
19.1. Client agrees that Search Engine Optimist may display the Product and Services (including but not limited to logos, Web Sites, call tracking reports) in a design portfolio, in advertising and promotional materials, and for submission to a third party for special recognition, honors, or awards.
20. SECTION TWENTY. Joint Drafting and Neutral Construction
20.1. This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation shall apply against any particular Party based on a contention that the Agreement was drafted by one of the Parties. This Agreement shall be construed and interpreted in a neutral manner.
21. SECTION TWENTY ONE. Validity of Agreement
21.1. If any term, provision, covenant, or condition of this Agreement or any portion thereof is held by a court of competent jurisdiction to be invalid or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
22. SECTION TWENTY TWO. Entire Agreement
22.1. This Agreement, together with any and all current and future Agreements, embodies the entire agreement of the Parties relating to the rights granted and obligations assumed in this Agreement. Any oral representations or modifications concerning this instrument shall be of no force or effect unless contained in a subsequent written modification signed by the Party to be charged. By entering into this Agreement, Client acknowledges that it is not relying on any statement, written or verbal, that is inconsistent with, or not set forth in, the Service Agreement.
23. SECTION TWENTY THREE. Venue and Applicable Law
23.1. This Agreement shall be governed, construed and interpreted in accordance with the laws of the State of Washington (without respect to principles of conflicts of law), and the Parties submit to jurisdiction of and venue in the State of Washington in any legal proceeding necessary to interpret or enforce this Agreement or any part of this Agreement.
24. SECTION TWENTY FOUR. Force Majeure.
24.1. Search Engine Optimist shall not be responsible for any delays, errors, failures to perform, interruptions, or disruptions in the Services caused by or resulting from any act, omission or condition beyond Search Engine Optimist’s reasonable control, whether or not foreseeable or identified, including without limitation acts of God, strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disaster.
25. SECTION TWENTY FIVE. Relationship of Parties.
25.1. Search Engine Optimist and Client’s relationship is limited to that of vendor/customer, and neither party is an agent, representative or partner of the other party. Neither party shall have authority to enter into any agreement on behalf of the other party, or undertake any obligation or liability for (or otherwise bind) the other party. This Agreement does not, and is not intended to, confer any rights or remedies upon any person other than Client and Search Engine Optimist. Client acknowledges that Search Engine Optimist provides Services to businesses and other customers, and nothing herein or in any Agreement grants Client an exclusive right to receive services from Search Engine Optimist. Client agrees that Search Engine Optimist may provide services to Client’s potential or actual competitors and such provision of services does not give rise to a conflict of interest.
26. SECTION TWENTY SIX. Waiver & Severability.
26.1. Should any provision of this Agreement or any Service Agreement be held void, invalid, unenforceable, or illegal by a court of law, the remaining provisions will remain valid and enforceable. Failure to enforce any provision of this Agreement or a Service Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. Any provisions of this Agreement which impose an obligation or right after the termination or expiration date shall survive the termination or expiration of this Agreement and shall be binding on the parties.
27. SECTION TWENTY SEVEN. Attorney Fees and Costs
27.1. In the event that a dispute arises between the parties and either party secures the assistance of legal counsel, the non-prevailing party shall pay the prevailing party his or her actual attorney’s fees and costs incurred, with or without suit or other legal proceeding. For the purposes of this clause, the term “prevailing party” is defined as the party in whose favor a net monetary judgment or settlement is awarded or secured after all offsets, claims, counterclaims and allowances have been resolved, exclusive of the attorney fee award. There shall be only one prevailing party.