END USER SOFTWARE LICENSE AGREEMENT

PLEASE READ THIS END USER SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE AGREEING TO THESE TERMS AND CONDITIONS.

THIS IS A LEGALLY BINDING AGREEMENT BY AND BETWEEN cMEDIA PRODUCTIONS, INC., A WASHINGTON CORPORATION, D/B/A ODD DOG MEDIA™ AND THE END USER.

PLEASE PRINT A COPY OF THIS EULA.

By clicking “I Agree”, End User represent and agrees that End User as fully read and fully understands this End User Software License Agreement (“EULA”) and End User agrees to be legally bound by the terms and conditions of this EULA as of the date End User pays the license fee(s) and clicks “I Agree” (the “Effective Date”). This EULA is by and between cMedia Productions, Inc., a Washington Corporation, D/B/A Odd Dog Media™, and its successors and assigns, (“ODM”), and the person and entity who purchases (“End User”) ODM’s Local Business Online Marketing Solutions (the per the terms and conditions of this EULA.

1. Authorization.   By clicking “I Agree”, End User represents and warrants that: (a) he or she is authorized to provide and pay the monthly package fees with the credit card information he or she provides, (b) he or she and End User understand and agree that this credit card shall be billed the monthly package fee on the 1^st calendar day of each month until this Agreement is terminated, (c) any credit information and personally identify information her or she provides is true, accurate and complete, (d) all charges incurred by End User will be honored by End User, (e) End User will pay the monthly charges incurred by End User at the posted prices, including any applicable taxes; and (f), the individual purchasing the right to use the ODM Local Business Online Marketing Solutions has obtained all necessary approvals and is duly authorized to bind End User to this EULA. If End User’s credit card information changes, End User shall promptly update End User’s account with ODM before the next payment is due. 

2. ODM’s Local Business Online Marketing Solutions. The ODM Local Business Online Marketing Solutions consists of the following services and tools:

a. Local SEO:  Optimizing websites and a business’ online presence so local business are found on search engines by their local and keyword business description, i.e. “Seattle plumber” or “plumbing company in Seattle”.

b. Keyword Tracking: To measure the success of a Local SEO campaign, ODM tracks where its customer website ranks in Google, Bing & Yahoo for up to 100 mutually agreed search terms.

c. Monthly Reports:  Each month ODM will send Reseller a snapshot report from its live dashboard for each customer that details how the customer’s Website Statistics, Local SEO and Keyword Rankings are improving.  Customers can check the live dashboard independent of ODM. If the customer subscribes to ODM’s Local Business Package, ODM will also include how many leads were generated, where they came from and whether they were good or bad leads.

d. Website Design & Build:  Using material and content provided by the Reseller and its customer, ODM will design and build full websites for the End User, to the following specifications: 

(1) a maximum of 20 webpages;

(2) no more than 5 page templates (Homepage, Sub-Page, Contact, Blog Roll, Blog Post); 

(3) no more than 2 rounds of edits and revisions to the Homepage;

(4) no more than 1 round of edits and revisions to all other page templates;

(5) no more than 2 Contact Forms.

(6)  ODM will build the website and send a link to the End User, and the End User may request edits and revisions to the website content provided by the End User ODM without additional compensation for 2 business days receiving the link from.  Edits and revisions beyond this 2-business days window shall be paid at ODM’s then current hourly rates.    

e. Site Hosting & Updates:  Except for routine maintenance and service, ODM provides 99.95% uptime 24/7/365 hosting service.

f. Lead Tracking & Ranking:  ODM’s proprietary and custom built lead-tracking system that measures every lead that comes to its website. 

g. Review Monitoring & Management: ODM will provide tools and guidance on how to build more positive reviews.  ODM also monitors the web for any new reviews and will alert the customer of negative reviews, and will offer guidance on how to mitigate the bad review.

h. Social Media Setup & Integration:  ODM helps its customers setup & brand every piece of social media “real estate” to ensure brand consistency across social media tools. ODM also integrates the customer’s Facebook, Twitter, LinkedIn and Google+ My Business social media properties with the customer’s website so that every blog/news item posted on the website is automatically posted to these social media properties as well.

i. Quarterly Consulting: Once a quarter the ODM Project Manager will review each customer’s account and come up with a list of “To Do’s” that should be done to help online marketing efforts, and ODM will share this information with the customer via a 1-hour phone or video conference.

j. Monthly Adwords Budget (Local Business Plus and Exclusive Packages Only): ODM will pay for a monthly Google Adwords campaign for customers who select the Local Business Package Advanced package.  The amount will be at ODM’s discretion and the number of leads generated from the Adwords campaign will be provided in your monthly report.  The client is not responsible for any payments to Google. 

k. ODM offers the following Packages on a 24-month bi-annual basis:

l. ODM allows the Local SEO package to be combined with the other packages as an “Add On” to accommodate businesses with multiple locations.  Each Local SEO package accommodates a single business physical location.

2. Rights to End User Content.   End User may provide text, images, graphics, business names, addressed, email addresses, employee names, photographs, logos, trademarks, services mark or other intellectual property, content and material to the ODM Local Business Online Marketing Solutions, for use on the End User’s website, social media, and other online marketing (“End User Content”). End User represents and warrants that End User owns all End User Content or that Ed User has the lawful right to provide End User Content to ODM and to allow ODM to use, publish, reproduce publicly display the End User Content on the Internet.   End User also represents and warrants that the End User Content may be used in the manner intended without infringing upon any third-party’s copyright, trademark, patent, trade secrets or other proprietary right.  End User agrees to indemnify and hold ODM and its members harmless (including attorneys’ fees and costs) against any third party claims alleging a violation of the foregoing promises. This indemnification obligation shall survive the termination of this Agreement.

3. License Grant & Ownership Conversion.

a. Initial 24-Month Term – By clicking “I Agree”, End User also represents that End User understands and agrees that the ODM Local Business Online Marketing Solutions, and all ODM intellectual property in and to the ODM Local Business Online Marketing Solutions, is licensed to End User, provided End User (i) exclusively uses ODM’s website hosting service for 24-consecutive months for the local business website and (ii) fully pays the monthly package fees for 24-consecutive months in a timely manner.  This license grant is non-exclusive, non-assignable, non-transferrable and revocable.

b The ODM Local Business Online Marketing Solutions are protected by applicable intellectual property laws, including, but not limited to, United States copyright laws and international treaties.  ODM hereby reserves all rights in all jurisdictions in and to the ODM Local Business Online Marketing Solutions not expressly granted in this Agreement.  All rights not expressly granted are reserved. In the initial 24-month term, the right to use the ODM Local Business Online Marketing Solutions are licensed only, and not sold.  The limited rights granted to End User in this EULA are not a transfer or sale of ODM’s ownership rights in or to the ODM Local Business Online Marketing Solutions except as provided in this Agreement. END USER MAY NOT RENT, LEASE, SUBLICENSE, SELL, ASSIGN, LOAN, OR OTHERWISE USE OR TRANSFER THE ODM Local Business Online Marketing Solutions OR ANY OF END USER’s RIGHTS AND OBLIGATIONS UNDER THIS EULA TO ANY THIRD PARTY.  End User may not remove or destroy any ODM trademarks, copyright notices or other proprietary markings.  End User may not reverse engineer, modify or adapt the ODM Local Business Online Marketing Solutions, merge the ODM Local Business Online Marketing Solutions into another program, or create derivative works based on the ODM Local Business Online Marketing Solutions. 

c. Post Initial 24-Month Term Ownership Transfer – Provided End User (i) exclusively uses ODM’s website hosting service for 24-consecutive months for the local business website and (ii) fully pays the monthly package fees for 24-consecutive months in a timely manner, at the end of the first 24-month period, ODM shall transfer and assign ownership and all intellectual property rights in and to the ODM Local Business Online Marketing Solutions to the End User.

4. Term and Termination. 

The term of this EULA is 24-months from the date End User clicks “I Agree” (the “Term”) and pays the applicable license fee (the “Activation Date”). This EULA shall automatically renew 30-days prior to each anniversary of the Activation Date for an additional 24-month term unless End User provides notice of intent to not renew prior to 60-days prior to each anniversary of the Activation Date.  This EULA shall automatically terminate without notice if End User fails to pay the monthly package fees as agreed in this EULA.   

b. Termination – Initial 24-Months.  If End User fails to pay in a timely manner or otherwise cancels or terminates this EULA in the initial 24-month period, ODM shall take down and remove the End User’s website, ODM shall cease providing all support, services, reports and social media support to End User.   

c. Termination – Post Initial 24-Month Term.  If, following the initial 12-month period, End User fails to pay in a timely manner or otherwise cancels or terminates this EULA, ODM shall take down and remove the End User’s website, ODM shall cease providing all support, services, reports and social media support to End User.  In addition, ODM shall deliver to End Use a Zip file that contains End User’s website within 60-days of the termination date. 

4. Support.  ODM will provide email support to End User during the Term.  To access this support or to provide comments, suggestions or feedback regarding the ODM Local Business Online Marketing Solutions, ODM, its products or services (“Feedback”), email ODM at [email protected].  End User agrees that all Feedback that End User give shall be given voluntarily, and End User grant and assign to ODM the perpetual right to use Feedback as it sees fit without restriction.

5. Consideration and Taxes.  In consideration for the grant of the license and the use of the ODM Local Business Online Marketing Solutions as authorized in this EULA, End User shall pay ODM by credit card the license fee(s). All payments to ODM exclude sales, use, and other taxes that may be imposed upon such payments.  End User is solely liable for any sales tax, use tax, or other taxes (exclusive of taxes based on ODM’s revenue) due pursuant to this EULA.  End User will indemnify and hold ODM and its members, successors and assigns fully harmless (including penalties, interests, attorney fees and costs) from End User’s failure to pay any such tax when due.

6. Limited Warranty.  ODM warrants that the ODM Local Business Online Marketing Solutions will perform substantially in accordance with ODM’s online Features page during the Term. This limited warranty will be void if End User violate this EULA or if the failure of the ODM Local Business Online Marketing Solutions has resulted from any misuse, or use of the ODM Local Business Online Marketing Solutions not in accordance with the documentation of this EULA. 

7. NO OTHER WARRANTIES.   END USER ASSUME ALL RESPONSIBILITIES FOR SELECTION OF THE ODM LOCAL BUSINESS ONLINE MARKETING SOLUTIONS TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM  THE ODM LOCAL BUSINESS ONLINE MARKETING SOLUTIONS  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ODM DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE ODM LOCAL BUSINESS ONLINE MARKETING SOLUTIONS AND THE ACCOMPANYING WRITTEN MATERIALS.  THERE IS NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE ODM LOCAL BUSINESS ONLINE MARKETING SOLUTIONS THERE IS NO WARRANTY THAT THE ODM LOCAL BUSINESS ONLINE MARKETING SOLUTIONS OR ODM’S EFFORTS WILL FULFILL ANY OF END USER PARTICULAR PURPOSES OR NEEDS.

8. LIMITATION OF LIABILITY.  UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INFORMATION OR LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS) ARISING OUT OF THE AUTHORIZED USE OR INABILITY TO USE THE ODM LOCAL BUSINESS ONLINE MARKETING SOLUTIONS AS AUTHORIZED IN THIS EULA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING LIMITATIONS ARE INDEPENDENT OF THE EXCLUSIVE REMEDY PROVIDED IN THIS SECTION AND WILL APPLY NOTWITHSTANDING ANY FAILURE OF SUCH EXCLUSIVE REMEDY. IN NO EVENT SHALL ODM’S LIABILITY FOR DAMAGES ARISING OUT OF THIS EULA AND THE AUTHORIZED USE OF THE ODM LOCAL BUSINESS ONLINE MARKETING SOLUTIONS EXCEED THE LICENSE FEE(S) END USER PAID FOR THE USE OF THE ODM LOCAL BUSINESS ONLINE MARKETING SOLUTIONS IN THE PRIOR 12-MONTHS.  THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY AND DAMAGES SHALL NOT APPLY TO: 

a. An infringement or misappropriation claim brought by ODM;

b. a claim for damages or seeking an injunction arising out of the non authorized use of the ODM Local Business Online Marketing Solutions; OR

c. an indemnity obligation pursuant to this EULA.

10. Indemnification.  End User will indemnify and hold harmless ODM (including all of its officers, employees, directors, subsidiaries, representatives, affiliates, and agents) from and against any claims, demands, lawsuits damages, penalties, (including attorney’s fees and expenses) that arise or result from End User unauthorized use of the ODM Local Business Online Marketing Solutions. If End User’s authorized use of the ODM Local Business Online Marketing Solutions are likely to become, enjoined or materially diminished as a result of an infringement action against ODM, then ODM will do one of the following at its sole expense: (a) procure the continuing right for End User to use the ODM Local Business Online Marketing Solutions, or (b) replace or modify the ODM Local Business Online Marketing Solutions in a functionally equivalent manner so that it no longer infringes, or (c) refund a prorate portion of the license fee. 

11. Trademarks.  Certain marks and names of the ODM Local Business Online Marketing Solutions in this EULA and within the ODM Local Business Online Marketing Solutions may constitute trademarks of ODM or third parties.  End User is not authorized to use any such trademarks.

12. Export Restrictions.  End User may not export or re-export the ODM Local Business Online Marketing Solutions without complying with applicable export control laws and obtaining any necessary permits and licenses. End User will indemnify and hold harmless ODM (including all of its officers, employees, directors, subsidiaries, representatives, affiliates, and agents) from and against any claims, demands, lawsuits damages, penalties, (including attorney’s fees and expenses) that arise or result from End User alleged violation of this section.

13. Disputes. Should a dispute arise under this EULA, the parties shall first notify the other party in writing of the dispute and attempt in good faith to resolved the matter informally.  If the parties are not able to resolve the dispute, they shall pursue mandatory mediation with a mutually agreeable mediator at JAMS, Seattle.  If the matter is not resolved through mandatory mediation, it is hereby agreed that dispute shall be resolved using binding arbitration with a single arbitrator, and hereby appoint Judicial Dispute Resolution, LLC, Seattle, to serve as the arbitrator.  The parties agrees to the exclusive appointment of these Seattle, Washington, ADR organizations to help resolve any deputes and to the venue of these organizations. The parties waive all defenses regarding the selection and appointment of these Seattle, Washington, ADR organizations.  The parties further agrees that the arbitration hearing shall be held no later than 60-days from the date of the Demand for Arbitration, that the parties are required to fully disclose and produce all documents and other evidence to be used in their case in chief and that the failure to disclose and produce all such documents and records shall render them inadmissible.  Each party shall pay 50% of the mediation and arbitration fees and costs.

14. Notices.  Any notice required under this EULA shall be sent as follows:

16. General.  This EULA and the relationship between the parties shall be governed by the laws of the State of Washington, United States of America, without reference to its conflict of laws principles.  This EULA is the entire agreement between End User and ODM and supersedes any other communications with respect to the ODM Local Business Online Marketing Solutions or the relationship between the parties.  If any provision of this EULA is held invalid or unenforceable, the remainder of this EULA will continue in full force and effect.   This EULA cannot be amended or modified except in writing executed by End User and a duly authorized representative of ODM.