TERMS OF SERVICE
GENERAL TERMS APPLICABLE TO ALL SERVICES
EMPLOYMENT OF AGENCY:
CLIENT hereby permits the AGENCY to render, and AGENCY agrees to render to CLIENT, all the services customarily performed by a digital internet advertising and marketing agency within such budgets as CLIENT may set from time to time for advertising, marketing and development efforts as defined by this contract (AGREEMENT).
ADVERTISING & PRODUCTION RATES:
- Media costs, setup fees, production costs & hourly rates are to be set by AGENCY.
- Rates are subject to change at any time by AGENCY, with the exclusion of existing advertising programs or agreements currently in place.
ACCEPTANCE OF AGREEMENTS:
- All potential forms of signature shall be governed by this AGREEMENT including, but not limited to, checking the agreement to “terms of service” box, written signature on individual project AGREEMENTs, electronic signatures, faxed signatures, scanned and emailed signatures, clear stated email approvals, and/or any other electronically clearly stated agreement to proposed change or program.
PAYMENT & BILLING TERMS:
- CLIENT hereby agrees to pay the fees in price and schedule as listed on the agreement completed by CLIENT or in the proposal submitted to CLIENT.
- If full advertising budget (when applicable) is not spent due to online demand or inventory, in the event there are additional months of advertising, balance will be applied to the upcoming month(s) unless prior written communication states that any unspent amounts are to be refunded & will be promptly refunded within 7 business days.
- CLIENT hereby grants permission for AGENCY to charge CLIENT’s credit, debit card or bank account on file according to the price and schedule listed on the agreement or proposal every month for the amount agreed to as the monthly spend under AGREEMENT. If the invoiced budget is a one-time charge then no monthly charge will apply. Monthly payments will be put on auto-bill and will automatically be charged to the credit card on file on the same day every month as the first payment date made.
- CLIENT agrees to pay upon execution of this agreement. AGENCY reserves the right to stop work until payment is made. Should collection activities become necessary, CLIENT agrees to pay all fees relating to said collection activities.
- AGENCY reserves the right to add late fee of 5% per month on outstanding invoices at least one month past due.
- CLIENT shall not be obligated to reimburse AGENCY for any travel or other out-of-pocket expenses incurred in the performance of services pursuant to this AGREEMENT unless expressly agreed by CLIENT in advance.
- AGENCY shall not be obligated to reimburse CLIENT for any travel or other out-of-pocket expenses incurred in the performance of services pursuant to this AGREEMENT unless expressly agreed by AGENCY in advance.
MAKE GOODS/SCHEDULING CORRECTIONS/TECHNOLOGY CONFLICTS:
- In the event of an error, whether human (AGENCY or vendors of AGENCY) or technology based, AGENCY shall provide CLIENT notification and make all reasonable efforts with CLIENT approval or CLIENT discretion to make good on planned contractual obligations.
- CLIENT agrees that AGENCY is the exclusive provider of all contracted and executed management and services during the duration of this agreement, with the exception of any agreements the CLIENT has entered into prior to executing this agreement with the AGENCY and which the CLIENT has disclosed to the AGENCY in writing.
WORK PRODUCT OWNERSHIP
- Any copyrightable works, ideas, discoveries, inventions, patents, products or other information (collectively the “Work Product” or “Deliverables”) developed in whole or in part by the AGENCY in connection with the AGREEMENT will be the exclusive property of the CLIENT. Upon request, AGENCY will execute all documents necessary to confirm or perfect the exclusive ownership of CLIENT to the Work Product.
- Of CLIENT by AGENCY. At all times after the effective date of this agreement, the AGENCY shall indemnify the CLIENT from all damages, liabilities, expenses, claims, or judgments (including interest, penalties, reasonable attorneys' fees, accounting fees, and expert witness fees) (collectively, the "Claims") that the AGENCY may incur and that arise from:(i) the AGENCY’S negligence or willful misconduct arising from the AGENCY’S carrying out of its obligations under this agreement;(ii) the AGENCY’S breach of any of its obligations or representations under this agreement; or(iii) the AGENCY’S breach of its express representation that it is an independent contractor and in compliance with all applicable laws related to work as an independent contractor. If a regulatory body or court of competent jurisdiction finds that the AGENCY is not an independent contractor or is not in compliance with applicable laws related to work as an independent contractor, based on the AGENCY’S own actions, the AGENCY will assume full responsibility and liability for all taxes, assessments, and penalties imposed against the AGENCY or the CLIENT resulting from that contrary interpretation, including taxes, assessments, and penalties that would have been deducted from the AGENCY’S earnings if the AGENCY had been on the CLIENT’S payroll and employed as a Company employee.
- Of AGENCY by CLIENT. At all times after the effective date of this agreement, the CLIENT shall indemnify the AGENCY from all Claims that the AGENCY may incur arising from: (i) the CLIENT’S operation of its business; (ii) the CLIENT’S breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party; or (iii) the CLIENT’S breach of any of its obligations or representations under this agreement. However, the CLIENT is not obligated to indemnify the AGENCY if any of these Claims result from the AGENCY’S own actions or inactions.
- Non-Infringement. AGENCY shall indemnify, defend and hold harmless the CLIENT Indemnitees from and against any and all Claims relating to, or arising out of, (i) any claim alleging that the Services or any Deliverable, or the use of any part thereof, infringes, misappropriates or violates any Intellectual Property Rights of a third party, or (ii) any breach by Consultant of any of the provisions of Section Entitled Sufficient Rights; Non-Infringement
- Breach of Confidentiality or Security Requirements. AGENCY shall indemnify, defend, and hold harmless the CLIENT Indemnitees from and against any and all Claims relating to, or arising out of, any breach by Consultant of any of the provisions of Sections entitled Confidentiality and Security.
- Nothing contained herein or any document executed in connection herewith, shall be construed to create an employer-employee partnership or joint venture relationship between CLIENT and AGENCY. AGENCY is an independent Contractor and not an employee of CLIENT or any of its subsidiaries or affiliates. The consideration set forth herein shall be the sole consideration due Contractor for the services rendered. It is understood that CLIENT will not withhold any amounts for payment of taxes from the compensation of Contractor hereunder. Contractor will not represent to be or hold themselves out as an employee of CLIENT and Contractor acknowledges that he/she shall not have the right or entitlement in or to any of the pension, retirement or other benefit programs now or hereafter available to regular employees. Any and all sums subject to deductions, if any, required to be withheld and/or paid under any applicable state, federal or municipal laws or union or professional guild regulations shall be Contractor’s sole responsibility and Contractor shall indemnify and hold CLIENT harmless from any and all damages, claims and expenses arising out of or resulting from any claims asserted by any taxing authority as a result of or in connection with said payments.
REPRESENTATIONS, WARRANTIES AND COVENANTS
- Authority; Compliance with Laws. AGENCY represents, warrants and covenants to CLIENT that (i) it has the authority to enter into this AGREEMENT and to perform all of its obligations hereunder; (ii) AGENCY and each of the AGENCY Personnel authorized to perform Services hereunder have not previously entered into any agreement that would restrict any of such persons in the performance of Services; and (iii) it shall comply with all applicable foreign and United States federal, state and local laws, rules and regulations in its performance of this Agreement.
- Performance; No Viruses. AGENCY represents, warrants and covenants to CLIENT that (i) AGENCY has the expertise and capacity to perform the Services; (ii) all Services shall be performed by qualified AGENCY Personnel in a timely, professional and workmanlike manner consistent with good and sound professional procedures and in accordance with generally accepted industry standards; (iii) all Services and Deliverables shall conform to any and all requirements and specifications set forth in the relevant Statement of Work, Quotes or Proposals; and (iv) any Deliverables and computer media furnished to CLIENT pursuant to this Agreement shall be free from computer viruses and any undocumented and unauthorized methods for terminating or disrupting the operation of, or gaining access to, the Deliverables or computer systems or other computing resources or data used in connection therewith, or other code features which could result in or cause, directly or indirectly, damage, loss or disruption to all or any part of the Deliverables or computer systems or other computing resources or data used in connection therewith.
- Sufficient Rights; Non-Infringement. AGENCY represents, warrants and covenants to CLIENT that (i) it has sufficient rights in the Deliverables to grant to CLIENT the rights specified in this Agreement; (ii) the Services and Deliverables do not and shall not infringe upon or otherwise violate or misappropriate any Intellectual Property Rights of any third party; and (iii) all of the Deliverables shall be free and clear of all liens, claims, encumbrances or demands of third parties. In the event of a breach of any of the representations, warranties or covenants set forth in this Section, AGENCY shall, at no additional cost to CLIENT, replace or modify the affected Service or Deliverable, with a functionally equivalent and conforming Service or Deliverable, or obtain for CLIENT the right to continue using the Service or Deliverable.
- Remedies. In addition to any other remedies set forth above or to which CLIENT may be entitled at law or in equity, in the event of a breach of any of the representations, warranties or covenants set forth above, AGENCY shall promptly re-perform the Services at no additional cost so as to make the Services comply with such representations, warranties and covenants. If AGENCY should fail to promptly re-perform the Services, or if CLIENT determines that AGENCY shall be unable to correct such deficient Services in a timely manner, CLIENT shall not be obligated to pay for such deficient Services and shall be entitled to (i) recover any fees already paid to AGENCY for such deficient Services, (ii) retain any Deliverables resulting from such deficient Services, and (iii) terminate this Agreement and any Statements of Work hereunder immediately.
Any project estimates provided are indicative only, since there is no guarantee of results provided for payment made. Performance is based on best efforts in order to renew beyond the AGREEMENT term. Actual results may be greater or less than the numbers shared based on the relevant characteristics of each individual business and other external factors.
This AGREEMENT shall be governed and construed in accordance with the laws of Jefferson County, Colorado.
CLIENT agrees that any and all legal proceedings, if necessary or enforced, will reside in Jefferson County, Colorado.
If any provision of this AGREEMENT is held by a court of competent jurisdiction to be unenforceable, the remainder of the AGREEMENT shall remain in full force and effect and shall in no way be impaired.
TERM & AUTO-RENEWAL:
- This AGREEMENT shall continue in force until either party terminates this AGREEMENT as per the “TERMINATION” section contained herein. Either party shall request adjustments or amendments to this AGREEMENT which will only be executed and enforced upon agreement and written signatures of both parties.
- This AGREEMENT will automatically renew for an additional term based on the original term length unless CLIENT declines the automatic renewal option in physical or electronic writing within 14 calendar days before the end of the original term. Either party shall request adjustments or amendments to this AGREEMENT which will only be executed and enforced upon agreement and written signatures of both parties.
If a dispute arises out of or relates to this AGREEMENT, or the breach thereof, and if the dispute cannot be settled through negotiation, The parties hereto agree that any dispute between or among any of the parties shall be resolved exclusively through binding arbitration conducted in accordance with the commercial arbitration rules of the American Arbitration Association (the “AAA”) to the fullest extent permitted by law.
STATUTE OF LIMITATIONS:
Parties agree that any action in relation to an alleged breach of this Agreement shall be commenced within one year of the date of the breach, without regard to the date the breach is discovered. Any action not brought within that one year time period shall be barred, without regard to any other limitations period set forth by law or statute.
The affected party is excused from performance under this AGREEMENT for the duration of the Force Majeure event thereby extending the completion date. If the Force Majeure event continues past the agreed AGREEMENT completion date, the AGREEMENT may be terminated and both parties excused from their liabilities. Force Majeure events include, but not limited to, fire, explosion, strikes, riots, terrorist activity, war, acts of nature which prohibit travel, and acts of God.
TERMINATION OF AGREEMENT:
- CLIENT may initiate the process to terminate this AGREEMENT at any time.
- Termination for Convenience. CLIENT may terminate this agreement and/or any Statement of Work, Proposal or Quote for convenience upon sixty (60) days written notice to AGENCY. Upon termination under this clause, CLIENT shall be obligated to pay for all contracted monthly services rendered and due at the time of notice and the contracted amount of monthly services through the termination period, regardless of whether the CLIENT requests the AGENCY to perform the services. Upon receipt of such notice AGENCY shall immediately stop work under any fixed fee Statement of Work, Proposal or Quote unless otherwise directed by CLIENT in writing to continue such work. Unless otherwise specified in a Statement of Work, Proposal or Quote, in the event of termination of a fixed fee project, the parties shall mutually agree on what portion of the Services were actually completed by AGENCY as of the date of termination, and the fees owed by CLIENT shall be equal to that portion of the fixed fee. Any amounts prepaid by the CLIENT for fixed fee projects are not refundable in the event of cancelation.
- Termination for Cause. If either party materially breaches this AGREEMENT or any subsequent Statements of Work, Proposals, Quotes or Amendments and fails to cure such breach within ten (10) days after receiving notice of such breach from the other party, the non-breaching party may terminate the relevant AGREEMENT by providing written notice thereof. If either party materially breaches this AGREEMENT and fails to cure such breach within ten (10) days after receiving notice of such breach from the other party, the non-breaching party may terminate this AGREEMENT by providing written notice thereof, and if CLIENT is the non-breaching party, CLIENT may also terminate any and all Statements of Work, Quotes or Proposals hereunder. Notwithstanding the foregoing, the cure period for any breach relating to the failure to pay any monetary amounts owed hereunder shall be thirty (30) days.
- Effects of Termination. The termination or expiration of one Statement of Work, Quote or Proposal shall not affect this AGREEMENT or any other Statement of Work, Quote or Proposal. In the event this AGREEMENT is terminated or expires and a Statement of Work, Quote or Proposal hereunder is still in effect and not terminated or expired, the provisions of this AGREEMENT shall govern such Statement of Work, Quote or Proposal until its termination or expiration.
- Return of Property. Upon the termination or expiration of this AGREEMENT or upon the request of CLIENT, AGENCY agrees to end all further use of, to immediately return to CLIENT the original version of, and to delete or destroy all copies of (and upon request from CLIENT, provide a written certification to CLIENT of such deletion or destruction), any and all Client Confidential Information, Deliverables (whether completed or work-in progress), documents, data, tools, computer programs, equipment, and log-in credentials furnished by CLIENT or created or prepared by AGENCY pursuant hereto.
- Survival. The terms and conditions of this AGREEMENT that would, by their nature, survive the expiration or termination hereof, shall so survive the expiration or termination of this AGREEMENT for any reason.
- CLIENT Confidential Information. During the Term, the AGENCY may have access to or receive certain information about the CLIENT that the CLIENT designates as confidential or that, under the circumstances surrounding disclosure, ought to be treated as confidential by the AGENCY (“Client Confidential Information”). Confidential Information includes information relating to the CLIENT or its current or proposed business, financial statements, budgets and projections, customer identifying information, potential and intended customers, employers, products, computer programs, specifications, manuals, software, analyses, strategies, marketing plans, business plans, and other confidential information, provided orally, in writing, by drawings, or by any other media. The AGENCY will treat the Client Confidential Information as confidential and will not disclose it to any third party or use it for any purpose but to fulfill its obligations in this agreement. In addition, the AGENCY shall use due care and diligence to prevent the unauthorized use or disclosure of such information.
- AGENCY Confidential Information. Pursuant to this Agreement, AGENCY may disclose to CLIENT or CLIENT may obtain access to information or material (in whatever form maintained, whether documentary, computerized, electronic, oral or otherwise) concerning or related to AGENCY’s tools, methodologies, algorithms and/or processes, which is identified as “Confidential” or “Proprietary” in writing by AGENCY (“AGENCY Confidential Information”). “CLIENT Confidential Information” and “AGENCY Confidential Information” may be referred to collectively or individually herein as the “Confidential Information.”
- Non-Use and Non-Disclosure. For purposes of this AGREEMENT, the term “Receiving Party” means a party that has received, accessed, developed, or created Confidential Information of the other party (“Disclosing Party”). Except as permitted in this AGREEMENT, a Receiving Party shall not use the Confidential Information of the Disclosing Party except for the purpose of performing its obligations under this AGREEMENT or exercising the rights granted in this AGREEMENT (the “Purpose”). A Receiving Party shall protect all Confidential Information of the Disclosing Party from disclosure and unauthorized use in the same manner that it protects its own proprietary and confidential information of like nature, but in no event shall such standard of care be less than reasonable care. A Receiving Party may disclose Confidential Information of the Disclosing Party only to those of its employees, subcontractors, contractors, directors, advisors, auditors, attorneys and consultants (collectively “Representatives”) who require such information for the Purpose and who are subject to confidentiality obligations at least as protective as those set forth herein. Except as expressly authorized hereunder, a Receiving Party shall not copy the Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent. A Receiving Party shall immediately notify the Disclosing Party in the event of any unauthorized use or disclosure of such Disclosing Party’s Confidential Information. In the event that the Disclosing Party’s Confidential Information is required to be disclosed by the Receiving Party pursuant to law, regulation or valid court order, the Receiving Party shall be permitted to make such disclosure; provided, however, that (i) it shall promptly notify the Disclosing Party of that fact in writing to permit the Disclosing Party the reasonable opportunity to appear in any judicial proceeding involved or otherwise act to preserve its rights, and (ii) such disclosure is not greater than what was required to be compliant with such law, regulation or order. The foregoing obligations in this Section 3 shall not apply to information which (a) is already in the public domain at the time of disclosure or later becomes available to the public through no breach of this Agreement by the Receiving Party or its Representatives, (b) is already lawfully in the Receiving Party’s possession at the time of disclosure, without an obligation of confidentiality, as evidenced by the Receiving Party’s business records, (c) is received independently by the Receiving Party from a third party who was free to lawfully disclose such information to the Receiving Party, or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as evidenced by the Receiving Party’s business records. Each party further agrees not to disclose the terms of this Agreement to any third party except to the extent that disclosure is necessary to a party’s directors, advisors, auditors, and attorneys.
- Customer Information Handling Requirements. AGENCY hereby agrees that it shall comply with all reuse, redisclosure and other customer information handling, processing, security, and protection requirements that are specifically required of a non-affiliated third-party processor or servicer (or subcontractor) under the Federal Trade Commission’s Privacy of Consumer Financial Information; Final Rule (16 CFR 313) implementing Title V of the Gramm-Leach-Bliley Act, Public Law 106-102 (the “GLB Requirements”) and other applicable federal and state consumer privacy laws, rules, and regulations. Without limiting the foregoing, AGENCY agrees that:
- it is prohibited from disclosing or using any nonpublic personal information (as defined in the GLB Requirements) disclosed to it by CLIENT (the “Client Customer Information”), except solely to carry out the purposes for which it was disclosed, including use under an exception contained in Section 313.14 or 313.15, as applicable, of the GLB Requirements in the ordinary course of business to carry out those purposes; and
- it has implemented and will maintain an information security program designed to meet the objectives of the Interagency Guidelines Establishing Standards for Safeguarding Customer Information; Final Rule (12 CFR Part 30, et al.) (the “Information Security Program Requirements”).
- Security Incidents. AGENCY shall report to CLIENT all known or suspected Security Incidents. “Security Incident” means any unauthorized action by a known or unknown person which, if attempted, threatened, or successfully completed, should reasonably be considered one of the following: an attack, penetration, denial of service, disclosure of confidential customer or other sensitive information, misuse of system access, unauthorized access or intrusion (hacking), virus intrusion, scan of AGENCY’S systems or networks, or any other activity that could affect AGENCY’S systems or data, or the security, confidentiality or integrity of the Client Customer Information received, stored, processed, or maintained by AGENCY. “Security Incident” shall also include any contact by a law enforcement agency with AGENCY regarding any Client Customer Information. For purposes of this Section 2, “AGENCY” shall include any of AGENCY’S employees, agents, contractors or third parties (including, without limitation, any vendors or subcontractors used by AGENCY for the provision of Services to CLIENT) that have access (either authorized or unauthorized) to Client Customer Information. If a Security Incident occurs, AGENCY shall immediately notify CLIENT at telephone number 317-698-4012 (with a follow-up written notification sent immediately via overnight mail to CLIENT, Attention: Christina Rothenberger, 7415 Behm Rd. West Falls, NY 14170, and provide the following information: nature and impact of the Security Incident; actions already taken by AGENCY; AGENCY’S assessment of immediate risk; and corrective measures to be taken, evaluation of alternatives, and next steps. AGENCY shall continue providing (i) appropriate status reports to CLIENT regarding the resolution of the Security Incident and prevention of future such Security Incidents, and (ii) cooperation, as reasonably requested by CLIENT, in order to further investigate and resolve the Security Incident. CLIENT may require that the Services provided by AGENCY to CLIENT be suspended, connectivity with AGENCY be terminated, or that other appropriate action be taken pending such resolution.
If any provision of this Contract is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Contract shall remain in full force and effect.
In the event of litigation relating to the subject matter of this Agreement, the non-prevailing party shall reimburse the prevailing party for all reasonable attorney fees and costs resulting therefrom.
Failure by one party of this Agreement to require performance of any provision(s) shall not affect that party’s right to require subsequent performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
PARTNERSHIP OR AGENCY:
The relationship between parties is not to be construed as a partnership or agency and this Contract does not create either form of relationship.
Neither party to this Agreement will be held responsible for consequential (indirect) damages (e.g., loss of profit) because of any alleged failures by the other party.
Both parties warrant that they have read and understand the terms set forth in this agreement. Each party hereby represents and warrants that s/he is duly authorized to execute and deliver this Agreement on behalf of the Other Party and that this Agreement is binding upon the Other Party in accordance with its terms.
NON-SOLICITATION OF EMPLOYEES:
- Non-Solicitation of Employees. While any Statement of Work is in effect and for 12 months thereafter, neither party directly or indirectly shall solicit, offer employment to, or hire, or contract for services with, any employee of the other party involved in the performance of this Agreement, unless such other party consents.
This AGREEMENT constitutes the entire AGREEMENT between the parties with respect to the Project subject matter. It supersedes all previous AGREEMENTs and understandings between the parties and each party acknowledges that, in entering into this AGREEMENT, it does not do so on the basis of or in reliance upon any representations, promises, undertakings, warranties or other statements (whether written or oral) of any nature whatsoever except as expressly provided in this AGREEMENT. Thus, this Contract and attached Exhibits constitute the sole AGREEMENT between the Developer and the CLIENT. The Contract becomes effective when signed by CLIENT. Submission of this contract by Developer implies lawful signature and acceptance of terms.