ONLINE MARKETING SERVICES TERMS AND CONDITIONS
Thank you for choosing Epic Marketing. This Online Marketing Services Agreement (the “Agreement”) is between Epic Marketing (hereinafter “Company”) and the Client named on one or more Online Marketing Services Proposal Order Forms (“Proposal”). Each Proposal is subject to the General Terms and Conditions set forth below which are fully incorporated in each Order Form by this reference.
1. TERMS OF AGREEMENT
(a) Exclusivity. Company will perform, on an exclusive basis, all online marketing tasks for Client set forth in the Proposal. Client hereby authorizes Company to act on its behalf on all online marketing matters.
(b) Term of Agreement. In the absence of a contrary provision in the Proposal, and subject to the termination provisions herein, Client authorizes Company to act on its behalf for the term of this Agreement commencing on the Effective Date in the first Proposal (the “Initial Term”). If not sooner terminated, the term of this Agreement will automatically renew to month-to-month periods following the conclusion of the Initial Term.
(c) No Services without Execution of Agreement. Company shall not perform online marketing services on behalf of Client unless and until Client executes, agrees to and enters into this Agreement.
(d) Budget. Company will not exceed Client’s budget for a campaign or project, as set forth in the Proposal, without first obtaining written permission from Client.
(e) Notification. Client agrees to notify and to permit Company to notify, on its behalf, any online marketing entities to inform them of Client’s selection of Company as its Agent. Client further agrees to notify and direct all online marketing solicitations to Company.
(f) Client Approval. Client shall be responsible for approving all material, including the accuracy of its content (including any representations, claims, offers, promises, guarantees and contact information) before it is published or forwarded to an online service providers. The Company will use its best reasonable efforts to prepare accurate information during the design and development process, subject to Client’s final responsibility to proof and confirm that the content is accurate.
2. PAYMENT AND BILLING TERMS AND CONDITIONS
(a) Time. Unless otherwise set forth in the Proposal, all payments for online marketing services are to be paid in advance by Client to Company, as invoiced by Company, before any online marketing services are provided, purchased, or implemented.
(b) Materiality. Time is of the essence with this Agreement. Payment dates are a material term of this Agreement. Upon Client’s failure to make timely payment, Company, in its own discretion, may immediately discontinue further performance under, or terminate, this Agreement.
(c) Graphic Design. At client’s request or as necessary to implement online marketing campaigns outside scope of Proposal, Company will provide graphic design services to client. Client agrees to pay $95 for each hour of graphic design services performed for, or on behalf of, Client by Company and Company’s employees, consultants, contractors and agents.
(d) Web Development. At client’s request or as necessary to maintain or implement website design or development outside scope of Proposal, Company will provide web development services to client. Client agrees to pay $125 for each hour of web development services performed for, or on behalf of, Client by Company and Company’s employees, consultants, contractors and agents.
(e) Right to Modify Terms of Payment. Upon reasonable belief of Company that Client’s credit has been impaired, Company may request adequate assurances from Client verifying Client’s ability to pay on an ongoing basis. In the absence of reasonable assurances, Company may request advance payment and an additional retainer against estimates of future service fees for a period of three (3) months. If the parties do not agree on such modified payment terms, Company may terminate the Agreement.
(f) Billing and Collection. Company will invoice Client monthly unless otherwise provided in the Proposal. Any invoice or payment that is delinquent for more than fifteen (15) days may, in the Company’s sole discretion, be subject to interest at the rate of 1.5% per month (18% per annum) from the original due date or the highest rate allowable under applicable law, whichever is less. If any balance remains unpaid for a period of thirty (30) days, Company may terminate the agreement immediately and endeavor to collect any outstanding balance by means of applicable legal procedures, including without limitation, referral to a collection agency or institution of legal proceedings. Client shall be responsible for all collection costs, including actual reasonable collection fees of 35% and attorney’s fees.
(g) Credit Card Charges. If the applicable Proposal specifies that payment will be made by commercial or personal credit card specified by Client, Company may charge the client’s credit card on file with the Company for the full amount, plus any outstanding amounts, in the case of delinquent payments, interest and other charges set forth in the Agreement, any credit card processing fees, and a five percent (5%) late fee. Interest and penalties shall be compounded until paid in full.
(a) Non-cancelable Period. Should Client wish to terminate this Agreement after the initial contract term as noted in Proposal (non-cancelable period), Client shall give the Company thirty (30) days advance written notice of termination, which cannot be submitted until after the non-cancelable period.
(b) Mid-month Cancellation. Client canceling mid-month will still be responsible for paying the month in full by Client to Company, as invoiced by Company. Upon termination of this Agreement, any and all outstanding media, marketing, graphic design and web maintenance and design and other costs and expenses owed pursuant to this Agreement shall be immediately due and payable by Client to Company.
(c) By Client. If Client terminates this Agreement prior to its expiration, Client shall pay Company the agreed upon rate for services (including preparatory work) provided to Client or contracted for by the Company on Client’s behalf through the date of termination plus any applicable penalties, liquidated damages, costs and expenses incurred by Company resulting from termination including, but not limited to, expenses incurred in connection with the cancellation of media purchases and contracts and web hosting or servicing contracts.
(c) By Company. If Company terminates this Agreement prior to its expiration (other than for cause), and Company and Client cannot agree on a satisfactory substitute day or time for continuance of services covered by this Agreement at rates upon which this Agreement is based, Client shall pay Company for only services made through the date of termination without penalty; that is, Client shall have the benefit of the same discounts which it would have earned had it been allowed to complete the contract in the event of termination hereunder.
(d) Website Design and Implementation. The Company invests a great deal of time and effort into creating a one-of-a-kind website that is specifically designed for the Client, therefore; the website design and implementation service fees are not refundable or cancelable. Upon termination of this Agreement, any and all outstanding graphic design, web maintenance and design and other costs and expenses owed pursuant to this Agreement shall be immediately due and payable by Client to Company.
4. EFFECT OF BREACH
(a) By Client. Company shall have the right to terminate this Agreement at any time following default by Client in the payment of amounts owed, as set forth in the applicable Proposal, or any other material breach of the terms of this Agreement that remains uncured following a thirty (30) day written notice of such breach. Upon termination, all amounts then owed by Client pursuant to this Agreement shall become immediately due and payable.
(b) By Company. If Client terminates this Agreement based upon Company’s material breach of the terms of this Agreement, which breach remains uncured following a thirty (30) day written notice of such breach, Company’s liability shall be limited to the payment, as liquidated damages, of a net sum equal to Client’s actual non-cancelable costs incurred by Client for the online marketing services for the remainder of the term of the Agreement.
5. NATURAL AND UNAVOIDABLE CATASTROPHES
If, due to public emergency or necessity, force majeure, restriction imposed by law, acts of God, labor disputes, or for any other cause reasonably beyond Company’s control, Company is unable to perform online marketing or advertise as agreed pursuant to this Agreement, Company shall not be liable to Client or any other party for the damages incurred in connection with such failure.
6. SUBSTITUTION OF ONLINE PROGRAM
Company may substitute or accept substitution of online marketing programs on the condition substitution meets the requirements of the marketing campaigns required pursuant to this Agreement and the applicable Proposal.
7. THIRD-PARTY SERVICES AND CONTRACTORS
Unless otherwise noted on the face of this Agreement or applicable Proposal, all online marketing fees incurred for third-party services shall be invoiced by Company and paid by Client in advance.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, CLIENT AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS COMPANY, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, SUITS OR PROCEEDINGS, AS WELL AS ANY AND ALL LOSSES, LIABILITIES, DAMAGES, COSTS AND EXPENSES, INCLUDING ACTUAL REASONABLE ATTORNEYS FEES, (COLLECTIVELY “CLAIMS”) TO THE EXTENT SUCH CLAIMS ARISE FROM OR IN ANY MANNER RELATED (DIRECTLY OR INDIRECTLY) TO ANY WORK PERFORMED OR SERVICES PROVIDED UNDER THIS AGREEMENT; THE CONTENT OF ANY WEBSITES, ONLINE MARKETING, ADVERTISING OR MARKETING ADS, COPY AND MATERIALS PREPARED BY COMPANY FOR OR ON BEHALF OF CLIENT; ANY BREACH OF AN AGREEMENT BETWEEN CLIENT AND A THIRD-PARTY; ANY VIOLATION OF ANY FEDERAL, STATE, OR LOCAL LAW OR REGULATIONS; OR A THIRD PARTY; AND ANY BREACH OF THE TERMS OF THIS AGREEMENT BY CLIENT.
(a) Online Marketing Responsiveness. To the best of Company’s ability, Company will place the online marketing ads covered by this Agreement or on the days and/or approximate times provided in an applicable Proposal.
(b) Assignment and Waiver. This Agreement and all applicable Proposals, may not be assigned or transferred by Client without first obtaining the written consent of Company; nor may Company be required to perform online marketing services hereunder for the benefit of anyone other than Client. The failure of either party to enforce any rights granted hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breach.
(c) Governing Law, Venue, and Jurisdiction. This Agreement shall be governed by the laws of the State of Utah. The exclusive venue for any litigation or court action arising out of or related to this Agreement shall be in the state and federal courts located in Salt Lake County, Utah. Company and Client consent to the jurisdiction of the courts located in Salt Lake County, Utah for all litigation and court action arising out of or related to this Agreement. The parties acknowledge and agree that the provision of certain Services under this Agreement and applicable Proposals may be subject to the Rules and Regulations and the administrative decisions of the Federal Communications Commission made pursuant to its quasi-legislative and quasi-judicial powers.
(d) Joint Drafting. Both Company and Client have had the opportunity to review and recommend changes to this Agreement and applicable Proposals to seek professional input as desired. Ambiguities of intent or language shall not be construed against either party.
(e) Severability. If any part of this Agreement is unenforceable, the remainder of this Agreement will continue in full force and effect.
(f) Entire Agreement. This Agreement and Proposals contain the entire agreement between the parties relating to the subject matter herein contained. This Agreement may be changed by Company at any time without prior notice.
10. TRANSFER OF AGREEMENT
Client may not assign or transfer this Agreement, in whole or in part without the prior written consent of Company. In the event that Client contemplates whole or partial sale of its business, ownership change, or change in jurisdiction, Client shall notify Company by mail, facsimile or email no less than 60 days prior to the effective date of the event.