Revised, January 10, 2017
1.) Authorization to Engage Services. Client is engaging Tucker MarCom, LLC, (herein after "Agency"), located Hilton Head Island, SC, as an independent contractor providing services such as, but not limited to, developing or improving a web site, website and email hosting, domain registration, email marketing, social media marketing, consultation, and/or search engine marketing (herein after "project”). If you are entering into this agreement on behalf of a company or other entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the term “the client” shall refer to such entity. These terms and conditions are intended for Clients under a Client Service Agreement (herein after "CSA") and contain specific language and terms for Clients utilizing marketing services. These terms and conditions are not intended for Clients utilizing talent or casting services.
2.) Authorization of Work. Agency will provide Client with a CSA to review specific details outlining the scope of the project. The Client is expected to review the CSA for any necessary revisions or omissions before authorizing the commencement of work. Agency requests that Client endorses the CSA with a signature as acceptance of the requested project. For subsequent Change Orders, Client may email Agency (sent from the Client email address on file) specifically indicating approval to proceed as acceptable authorization.
3.) General Exclusivity. Our services are generally not exclusive. Agency is and remains at liberty to also provide services to third parties, and the Client is and remains at liberty to engage services elsewhere. Agency reserves the right to decline to provide any advice and assistance outside the scope of the Services as specified in the CSA agreed between the parties, even if the Agency may have previously provided such additional advice and assistance.
4.) Category Exclusive. We define “exclusivity in a category” as a Client using separate Agencies or entities to satisfy a specific marketing category like, but not limited to, web services, email marketing, brand consultation, and search engine marketing. For example, the Client may hire another Agency to handle PRINT design while our Agency handles WEB design. However, Client may NOT contract another Agency to ALSO handle web design while Agency is engaged WEB design. Due to the potential risk of conflict between Agencies and their respective practices, Client shall work exclusivity with our Agency in a given category. In the event Client desires to contract similar services as Agency, Client must obtain written prior approval from Agency to avoid the potential for any conflict of interest. Failure to abide by this term could result in additional fees to Client or termination of services by Agency.
SERVICE RATES AND AGENCY FEES
5.) Payment for Services. Client will pay Agency fees for the Services calculated in accordance with the fee schedule set forth in the “FEES/PAYMENT” section of the CSA. Agency will invoice Client in accordance with the payment terms, and unless otherwise specified, Client shall pay all invoices upon receipt.
6.) Payments from New Clients. Agency may require that new clients prepay for select Agency services until such time a positive payment history is established. This is done at Agency’s sole discretion.
7.) Service Retainer. For ongoing Client marketing services, Client may be required to pay a retainer fee based on an estimated number of billable Agency hours or services. This fee shall be payable in advance upon contract signing. Retainers are non-refundable. Agency shall bill first to the retainer. Upon depletion of retainer, Client shall pay additional Agency expenses, if any, upon presentment of a billing statement by Agency. In the course of rendering services to Client, it may be necessary for Agency to incur expenses for items such as printing expenses, media purchases, stock imagery, audio and video services, website platform expenses, special delivery services, travel, lodging and meals. The actual expenses may vary depending on the type of services provided. In any case, an estimate of these costs will be presented for your approval prior to service.
8.) Deposit for Services. For projects exceeding $500, a deposit of fifty percent (50%) is required to commence any custom design work; print graphics or websites. Fees to Agency are due and payable on the following schedule: 50% upon signing of contract and 25% after first milestone of the project is completed and approved. The balance is due upon project completion, but prior to delivery or uploading project files for Client’s access. Deposits are non-refundable. If the total amount of this contract is less than $500, the total amount shall be paid upon signing of contract and any additional costs incurred during development will be invoiced at the completion of the web site. Client shall pay all invoices upon receipt.
9.) Programming Deposit. In cases where exploratory research or vetting is necessary to advance the project, often times before the official project commences, a programming deposit may be required. If the project is awarded to Agency after such vetting process, the deposit is applied towards Client’s final programming cost. This is typical with APIs (Application Programming Interfaces), or using third-party systems where Agency must first research the technical assets needed to satisfy the Client project.
10.) Change Order. Either party may request change to the nature or scope of services outlined in the CSA. Any such request shall be sufficiently detailed to enable the other party to assess the impact of the proposed change. No such change will become effective until agreed in writing between the parties.
11.) Past Due Accounts & Suspension of Service. Any fees or other amounts payable in connection with the CSA not paid by Client to Agency on or prior to the respective due date is subject to a $25 per month late fee plus an accruing interest at the rate of 3.5% per month or at the highest rate of interest permitted under applicable law, whichever is less. Agency reserves the right to suspend service such as disabling client's website, email service, or marketing systems until final payment is made. Agency will attempt to notify Client by email and/or US Mail to inform client of any such pending activity. For website hosting, email accounts, or other marketing services which utilize third-party services or subscriptions, suspension of service does not extend the anniversary date or renewal period for those of services.
12.) Default. For unpaid accounts in which has Agency determined Client will not meet their obligations to pay, Agency shall consider Client in default and reserves the right to permanently delete Client’s website, hosting service, email service, and/or marketing systems. This includes, but not limited to, retaining any unpaid portion of the project assets, design work, website development, brand concepts, and project documents.
13.) Discounts and Rate Guarantees. Agency does not offer any perpetual discount or fee structure, nor guarantees rates unless specifically in writing by Agency. Rates and fees are provided to Client for approval through the CSA before any work commences. Hosting Plans, Email Service, Server Storage, and/or third-party services in which Agency contracts for use in order to satisfy Client’s project are subject to change. Agency will make every attempt to provide Client with advance notice of any rate changes prior to renewals or expiration of such service.
14.) Pages and Structure. Specific details about the Client project are outlined in the CSA allowing Client revisions or omissions to be made prior to Agency commencing work. Pages and structures which are added by Client after Agency completes the project are the responsibility of the Client unless contracted by Agency.
15.) Mobile Devices and Internet Browsers. Due to the multiple manufacturers, varying operating systems, and resolutions on mobile devices and desktop computer browsers, Agency cannot guarantee that website designs will accommodate every device, every internet browser, or every screen resolution.
16.) Client Revisions. During the development phase, Client is permitted to submit revisions according to the production schedule at the specified times. If significant modification is requested AFTER the service has been rendered to the Client's specification, Agency must count it as a new order or billable change request. A "Change Order" with estimated costs will be submitted for Client approval prior to changes being done. Some examples of significant (billable) modifications include, but not limited to, developing a new table or structure, database redesign, recreating or significantly modifying the company logo graphic, replacing more than 25% of the text to any given page, and/or creating a new navigation structure or changing the link graphics at the Client's request.
17.) Work Schedule and Completion Date. Agency is to submit a First Mockup Draft of web site no later than twenty (20) business days after Agency is able to successfully complete the Client Design Meeting and receives signed agreement, along with down payment. Client is to provide Agency with all the data requested to complete web site, including text for, company logo, photos, and eCommerce payment gateway information, if applicable. Upon completion of this stage, the Client will be asked to confirm acceptance for the design via digital e-mail or handwritten signature. Once acceptance is received, the work necessary to complete the project will continue. After contract has been paid in full, site will then be transferred from the Agency's development environment to a live environment and linked to a URL. All eCommerce websites MUST be paid in full and be in a live environment prior to live testing of transactions.
WEB HOSTING ACCOUNTS
18.) Website Hosting Platform. Unless otherwise stated in the CSA, all Agency web hosting services utilize Adobe Business Catalyst™ (herein after "platform"); a third-party system. This platform requires an annual commitment from the Client, and once service is initiated, cannot be terminated or refunded during this annual term. However, Client may request to upgrade service levels during this time to accommodate new functionality. According the specific hosting plan level accepted by Client, the platform may contain multiple features such as CRM, email marketing module, blog module, secure zones, eCommerce, photo galleries, ad rotators, and webApps. Standard features that are offered as part of the platform DO NOT represent the scope of work for Agency, and Agency is not obligated to activate or support such features unless specified in the CSA. If a Client wishes to utilize such features, they may do so at their own risk, OR contract Agency to provide setup and support of such feature.
19.) Domain Name. By Client request, Agency may register and configure a domain name for Client. Agency will provide documented registration to Client outlining the expiration date, full ownership, and contact details for that domain name. Payments for domain names are non-refundable and domain names cannot be returned or changed once approved. If the Agency has custody of the domain name, Agency shall maintain record of the renewal date to notify Client in order to prevent domain name from expiring. If Client maintains sole custody of the domain name, then Client is responsible for all registration renewals. Additional Agency fees may apply for domain names include, but not limited to, dealing with other suppliers in transferring domains, trying to reclaim a Client domain if expired, or acquiring domains from brokers. If the Client fails to pay for the renewal in a timely manner, the domain name may be released and made available for public sale or auction.
EMAIL SERVICE ACCOUNTS
20.) Pop Email Accounts. Agency email accounts are hosted through GoDaddy.com™ or Adobe Business Catalyst™. The Client is provided with setup instructions and given access to webmail and inbox functions. Email accounts may be setup on mobile devices and desktop computers of Client’s choice. Passwords and access details are provided to the Client in order to service their respective personnel who use this email service. For security purposes, Client’s personnel shall contact Client to retrieve their personal access, and if required, the Client shall contact Agency for assistance. Agency email accounts DO NOT include setup unless specifically stated in the CSA. Agency will charge separately for: a) Helping you setup outlook or your local devices, and troubleshooting setup issues on your systems b) Troubleshooting connectivity issues because of your ISP is blocking mail etc. c) Transferring mail from old accounts or other servers and migrating accounts.
21.) Email Marketing. Agency may utilize third-party email marketing software applications for Clients. Email marketing goals, designs, scheduled delivery, and account management are outlined in the CSA. As of June 10, 2015, Agency does not support the use of Adobe Business Catalyst™ email marketing module.
22.) Spam and Unsolicited Bulk Email ("UBE"). Agency maintains a zero-tolerance policy against Spam, whether direct, indirect or through any affiliate or agent acting on the Customer's behalf. As determined by Agency's sole discretion, Client shall have proof that all individuals in the Customer's database have opted-in or otherwise agreed to receive communications from Customer. All lists used in conjunction with the services provided by Agency are required to be 100% solicited (opt-in) lists. This means that the individuals on the list have explicitly agreed to receive information from your business entity. The practice of bartering, purchasing or renting lists of names and sending e-mails to those people is strictly prohibited. In accordance with CAN-SPAM legislation, all e-mail messages sent using our services must use the standard opt-out link. The complaint rate ("feedback rate") may not exceed the accepted industry standard at the time of transmission. As of the date of this Agreement, the industry standard for complaint rates is less than 0.1% (1/1000) on a per Email/Internet Service Provider basis. It is Client's sole responsibility to maintain under the then-current industry standard. Excessive spam violations may result in: (1) written warning (2) a charge of $250 per violation, or (3) termination from system.
23.) Ongoing Marketing Services. Agency offers a variety of online marketing options and packages to aid Client’s online brand and website goals. The specific details regarding these tasks are outlined in the CSA, and this marketing service is non-refundable. Accordingly, at its sole discretion, Agency budgets a monthly time allotment, staff labor, and/or media expense in order to fulfill these obligations. Unless specifically stated in writing, these tasks shall not be replaced with outside tasks which are not stated in the CSA. Cancellations of Agency marketing services during the term of the CSA are NOT permitted; however, with written permission from Agency, Client may upgrade or downgrade their marketing service (into a different marketing package level) to fulfill the remaining contracted term. Client must have fulfilled at least 50% of the contracted service months to be eligible for an account downgrade.
24.) Search Engine Optimization. Agency offers this service as stated in the CSA. Typically performed as an initial task, Search engine optimization (SEO) is the process of affecting the visibility of a website or a web page in a search engine's "natural" or un-paid ("organic") search results. In general, the higher ranked on the search results page, and more frequently a site appears in the search results list, the more visitors it will receive from the search engine's users. This process allows Client’s website the opportunity for best search results; however, Agency cannot and will not guarantee specific end-results from Agency SEO tactics.
25.) Search Engine Marketing. Agency offers this service as stated in the CSA. Search engine marketing (SEM) is a form of continuous Internet marketing that promotes websites by increasing their visibility in search engine results pages (SERPs) through continuous optimization and/or advertising. SEM may adjust or rewrite website content to achieve a higher ranking in search engine results pages, or use pay per click (PPC) listings through social media and search engines. Agency SEM typically includes blog management, copy editing, link building, and social media promotions.
26.) Photography, Content, Media Assets. Unless specifically outlined in the CSA, Agency shall not be obligated to purchase media, Google adWords™, or assets for Client marketing services. While Agency may draft original content for use in Client’s project, Agency is NOT obligated to purchase content, or to rewrite content suggested by Client. Images, photography, video, audio, and other supporting assets are NOT offered as a free service by Agency and may be purchased separately as outlined in the CSA.
COMMUNICATION AND TRAVEL
27.) Travel. Typical online marketing projects are derived online, digitally produced online, deployed online, and managed/measured online. Since many Agency tasks are performed in a digital environment, it is not the practice of the Agency to make physical location visits to meet with the Client before or after the project commences unless such visits are outlined in the CSA and are required to fulfill the digital marketing project. At its sole discretion, Agency may participate in outside physical meetings, but may use this time spent against the Client’s current marketing plan with Agency. For example, if Agency has allotted three (3) hours per month for a Client project and Agency travels to meet with Client in-person for one (1) hour (plus total travel time of one (1) hour), Agency is left with one (1) hour to work with Client’s account.
28.) Communications with Agency. Since many Agency tasks are performed in a digital environment, Agency often utilizes online tools to communicate with Clients. This includes, but no limited to, Gotomeeting™, Skype™, email communication, and telephone. Agency will never limit Client from communicating with Agency, or require Client to purchase or subscribe to an online communication tool; however, Client is required to adhere to Agency’s digital communication practice by effectively using email and having access to a computer for applicable screen-share meetings.
SUPPORT AND MAINTENANCE
29.) Web Support. For Client's using the Agency hosting platform, service includes monthly support which goes into effect when the Client has paid in full and signed off on the project as completed. If the Client, or an agent other than Agency, attempts to update the Client's web site and causes damage, Agency repair time will be assessed at the normal hourly rate. Monthly Web Support allows up to twenty-minutes (20) of support per month for technical support for our hosting system and features. This DOES NOT include content edits, providing instruction on extending features, or adding NEW functionality. THIS 20-MINUTE BLOCK IS CONSUMED EACH MONTH, WHETHER THE TIME IS USED OR NOT. The Client must be responsible for requesting such support from Agency. Request changes which exceed the 20 minute limit will be billed at a $65 hourly rate for 1 hour minimum charge. Support requests must be submitted in writing; email is acceptable.
30.) Third Party or Client Page Modification. Some Clients will desire to independently edit or update their web pages after completion of the site. Agency is not responsible for any damage created by the Client or agent of the Client. ANY REPAIRS REQUIRED WILL BE ASSESSED AT AN HOURLY RATE FOR 1 HOUR MINIMUM CHARGE.
31.) Service Interruptions. Agency does not guarantee the functions of the project will meet Client's expectations of website traffic, or resulting business, or that the operation of the hosting, email, and/or marketing systems will be uninterrupted and/or error-free. Agency is not responsible for scheduled or spontaneous downtime of email or hosting service due to line interruptions and/or other instances beyond Agency's control. By contracting Agency for services, Client acknowledges and accepts this risk.
RENEWAL & TERMINATION
32.) Renewal or Cancellation for Web Hosting. For web hosting and web marketing Clients, if no action is requested by Client, both Agency and Client acknowledge the continuation of these terms and renewal of the CSA service on a twelve month basis until such time notice is given. Client may reserve the right to cancel services of Agency provided the Client provides a 45-day written notice to Agency of Client's request. Web hosting billed on an annual basis, and purchase of domain names, are not refundable.
33.) Renewal or Cancellation for Web Marketing. For web marketing Clients, if no action is requested by Client, both Agency and Client acknowledge the continuation of these terms and renewal of the CSA service on a twelve month basis until such time notice is given. Client may reserve the right to cancel services of Agency provided the Client provides a 45-day written notice to Agency of Client's request.
34.) Data Retention. Agency shall not retain any of customer’s data after account termination. All data is deleted (a) from the servers at the time the account is terminated and (b) from back-ups during scheduled back-up rotation. Agency shall not restore, “burn” to cd, or send out any data pertaining to terminated accounts once terminated.
35.) Rights upon Termination of Agreement. Agency shall transfer, assign and make available to Client all property and materials in Agency's possession or subject to Agency's control that are the property of Client, subject to payment in full of amounts due pursuant to this Agreement. Agency also agrees to provide reasonable cooperation in arranging for the transfer or approval of third party's interest in all contracts, agreements and other arrangements with advertising media, suppliers, and others not then utilized, and all rights and claims thereto and therein, following appropriate release from the obligations therein. Termination requests must be submitted by registered letter to Agency; Tucker MarCom, LLC, Post Office Box 7825, Hilton Head Island, SC 29938.
36.) Copyrights and Trademarks. The Client represents to Agency and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Agency for inclusion in web pages are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend the Agency and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
37.) Ownership to Web Pages and Graphics. Copyright to the finished assembled work of web pages, email marketing, and graphics produced by Agency shall be vested with the Client upon final payment for the project. This ownership is to include final contracted design and return of any Client photos or materials supplied for completion of this project. Rights to Agency photos, graphics, and computer programs are specifically not transferred to the Client, and remain the property of Agency and/or their respective owners.
38.) Deliverables and Buy Out. It is the practice of Agency NOT TO RELEASE native design files with completed rendered graphics or programming code unless explicitly stipulated in writing as a condition of the project. Agency defines “Deliverables” as delivering or providing access to the FINISHED Client product or service and specifically does not include access to the original (native) files, software, or design elements required to complete the project. Client may receive the final high-resolution PDF output needed to satisfy the project, but not the original artwork files used to create the final output. Agency defines “Buy Out” as allowing the Client to purchase the original files and/or design assets used to complete the project. The Agency fee for the Client to buy such assets will be determined in a separate CSA which outlines the specific use. The typical buyout is 300% of design cost. For example, client pays $500 for a poster design. In order to purchase native files (access to the original design), the client must pay an additional $1,500. Otherwise, client is only to receive the rendered final artwork format (like PDF, JPG, EPS).
39.) Credit and Portfolio. Unless otherwise stated in writing by Client, Agency and its subcontractors retain the right to display all designs as examples of their work in their respective public and private portfolios. In cases where Client’s project may be deemed confidential or sensitive in nature, Agency will not display Client’s project. Agency requires Client to allow a "Marketing by Tucker MarCom" hyperlink inconspicuously in the Client’s website's footer.
40.) Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED IN SECTION 8, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. REGARDLESS OF WHETHER THIS AGREEMENT OR ANY REMEDY HEREUNDER MAY BE CONSIDERED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AGENCY'S, AND ITS LICENSORS' AND SUBCONTRACTORS', AGGREGATE TOTAL LIABILITY TO CLIENT FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED THE AGGREGATE AMOUNTS PAID TO AGENCY BY CLIENT UNDER THE STATEMENT OF WORK GIVING RISE TO ANY LIABILITY HEREUNDER DURING THE TWELVE MONTHS PRECEDING THE DATE SUCH LIABILITY AROSE.
41.) Governing State and Indemnification. This Agreement will be governed by the laws of the State of South Carolina. This Agreement constitutes our entire Agreement and understanding and supersedes any and all prior Agreements between Client and Agency. No changes to this Agreement and understanding will be effective unless in writing and signed by both parties. The South Carolina courts, only, will have jurisdiction of any legal controversies regarding this Agreement; and, any action or other proceeding which involves such controversy will be brought in the courts located within Beaufort County, South Carolina, and not elsewhere. Client agrees to indemnify, defend, and hold Agency and its officers, directors, and employees harmless from any and all claims, losses, demands, costs and expenses, including attorney's fees, which may arise out of, or in connection with, any engagements or Agreements or contracts obtained in accordance with this Agreement. Client is solely responsible for any legal liability arising out of or relating to Agency's use of the Client Materials in accordance with this Agreement. Client represents and warrants that: (i) Client owns all of the rights necessary and sufficient to permit the publication, distribution, and use of the Client Materials by Agency for the for the purposes of this Agreement; and (ii) that the use, reproduction, distribution, or transmission of the Client Materials will not violate any criminal laws or violate the rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary, property or other right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, or violation of any anti-discrimination law or regulation (collectively, "Indemnified Violation").
42.) Severability. If any one or more of the provisions contained in this Agreement or any document executed in connection herewith shall be invalid, illegal, or unenforceable in any respect under any applicable law, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired; provided, however, that in such case the parties oblige themselves to use their best efforts to achieve the purpose of the invalid provision.
43.) Legal Notices. Any legal notice required under this Agreement must be in writing and delivered either by email transmission with proof of receipt, or U.S. mail, certified mail, return receipt requested, properly addressed and with sufficient postage to Tucker MarCom, LLC, Post Office Box 7825, Hilton Head Island, SC 29938. Any paper notice to Agency must also be addressed with a carbon-copy delivered by email transmission to firstname.lastname@example.org.