This Marketing Agreement Service is between DMA (“Agency”) and the Company or Individual billed (“Client”) and is effective as of the “Order Effective Date” defined as the first date of subscription payment received.
This Marketing Agreement Service shall commence on the Order Effective Date and continue for twelve (12) months and shall automatically renew and extend for one (1) year terms unless the Client provides a thirty (30) day written notice (via email to firstname.lastname@example.org) of the intent to not renew the Service Agreement.
Warranties. The Agency makes no warranties of any kind, expressed or implied, regarding the success or otherwise of different branding strategies or advertising campaigns in fulfilling the client’s business needs. If we see that we are unable to produce results in line with our quality standards, the Agency may cancel the agreement without penalty.
Marketing Execution and Strategy. By subscribing to a Comprehensive Package, The Client admits and agrees to grant to the Agency unlimited and unfettered authority to independently take decisions as regards the project strategy and execution on its behalf. The Agency, in exercising this discretion, can make decisions, adopt ideas and take actions without the consent of the Client. Though the Agency integrates itself with the client and seeks to voice the brand voice, the Agency must produce the results without interference from the client.
Agency Retains Ownership, But Grants Client License. The Agency retains ownership in any work product related to this project, but grants the Client to use the work product in the following way(s): The Client has the right to use the created content without restriction for the lifetime of the content. Changes cannot be made without the permission and/or action of the agency. Creative authorship will be credited to the original author of any content. To avoid confusion, work product is the finished product, as well as drafts, notes, materials, mockups, hardware, designs, inventions, patents, code, and anything else that the Agency works on—that is, conceives, creates, designs, develops, invents, works on, or reduces to practice—as part of this project, whether before the date of this Contract or after. The Agency grants the Client license to this work product once the Client pays for it in full.
SaaS-Software as a Service. For software that is created specifically for the client by the agency, the agency retains the developer rights and ownership of all software developed. The client is paying the agency for its use of developed software or technology development under the SaaS model. If the client fails to pay, access to the software will be revoked. If the client wishes to purchase the software that has been developed, that will not fall under this agreement and a different agreement will need to be agreed upon.
Unrestricted License for Content Creation and Publication. The Client grants the Agency the unequivocal right to create content and publish content on its behalf on social media and branding platforms. The Client agrees to grant the Agency full access to its social media accounts and other mediums of publication.
Authority To Sign. Each party promises to the other party that it has the authority to enter into this Contract and to perform all of its obligations under this Contract.
Agency Has The Right To Give Client Work Product. The Agency promises that it owns the work product, that the Agency is able to give the work product to the Client, and that no other party will claim that it owns the work product. If the Agency uses employees or subagreementors, the Agency also promises that these employees and subagreementors have signed agreements with the Agency giving the Agency any rights that the employees or subagreementors have related to the Agency’s background IP and work product.
Agency Will Comply With Laws. The Agency promises that the manner it does this job, its work product, and any background IP it uses comply with applicable U.S. and foreign laws and regulations.
Work Product Does Not Infringe. The Agency promises that its work product does not and will not infringe on someone else’s intellectual property rights, that the Agency has the right to let the Client use the background IP, and that this Contract does not and will not violate any agreement that the Agency has entered into or will enter into with someone else.
Client Will Review Work. The Client promises to review the work product, to be reasonably available to the Agency if the Agency has questions regarding this project, and to provide timely feedback and decisions.
Client-Supplied Material Does Not Infringe. If the Client provides the Agency with material to incorporate into the work product, the Client promises that this material does not infringe on someone else’s intellectual property rights.
TERM AND TERMINATION. For recurring services, this Contract will auto-renew month to month following the 6-month or 12-month term unless the Client or the Agency ends the agreement before that time. Either party may end this Contract for any reason by sending an email or letter to the other party, informing the recipient that the sender is ending the Contract and that the Contract will end in 30 days. The Contract officially ends once that time has passed. The party that is ending the Contract must provide notice by taking the steps explained in Section 11.4. The Agency must immediately stop working as soon as it receives this notice unless the notice says otherwise. If either party ends this Contract before the Contract automatically ends as explained in the first sentence of this paragraph, the Client will pay the Agency a guaranteed payment of the value equal to your level of service (USD) Ad spend excluded, and the Client will reimburse the Agency for any agreed-upon, non cancellable expenses. The following sections don’t end even after the Contract ends: 2 (Ownership and Licenses); 3 (Non-Solicitation); 4(Representations); 7 (Confidential Information); 8 (Limitation of Liability); 9 (Indemnity); and 10 (General). If the Agency is unable to deliver the results that it feels is in compliance with the Agency quality control standards, the Agency reserves the right to cancel this agreement with the Client on an Ethics clause with no penalty to the client. Section five also applies to all single projects, except for: auto-renew from month-to-month, and the cancellation of the contract involving a fee. The Agency, with or without cause, upon (30) days written notice of intent to terminate the Client.
Relationship of the Parties. Neither any Service Agreement nor these General Terms and Conditions shall create, nor shall be represented by either party hereto to create, a partnership, joint venture, employer-employee, master-servant, principal-agent, or other relationship whatsoever between the parties.
Third Party Service. The Client is hiring the Agency as a third party service. The following statements accurately reflect their relationship:
- The Agency will use its own equipment, tools, and material to do the work.
- The Client will not control how the job is performed on a day-to-day basis. Rather, the Agency is responsible for determining when, where, and how it will carry out the work.
- The Client will not provide the Agency with any training.
- The Client and the Agency do not have a partnership or employer-employee relationship.
- The Agency cannot enter into agreements, make promises, or act on behalf of the Client.
- The Agency is not entitled to the Client’s benefits (e.g., group insurance, retirement benefits, retirement plans, vacation days).
- The Agency is responsible for its own taxes.
- The Client will not withhold social security and Medicare taxes or make payments for disability insurance, unemployment insurance, or workers compensation for the Agency or any of the Agency’s employees or subagreementors.
Overview. This Contract imposes special restrictions on how the Client and the Agency must handle confidential information. These obligations are explained in this section.
The Client’s Confidential Information. While working for the Client, the Agency may come across, or be given, Client information that is confidential. This is information like customer lists, business strategies, research & development notes, statistics about a website, and other information that is private. The Agency promises to treat this information as if it is the Agency’s own confidential information. The Agency may use this information to do its job under this Contract, but not for anything else. For example, if the Client lets the Agency use a customer list to send out a newsletter, the Agency cannot use those email addresses for any other purpose. The one exception to this is if the Client gives the Agency written permission to use the information for another purpose, the Agency may use the information for that purpose, as well. When this Contract ends, the Agency must give back or destroy all confidential information, and confirm that it has done so. The Agency promises that it will not share confidential information with a third party, unless the Client gives the Agency written permission first. The Agency must continue to follow these obligations, even after the Contract ends. The Agency’s responsibilities only stop if the Agency can show any of the following: (i) that the information was already public when the Agency came across it; (ii) the information became public after the Agency came across it, but not because of anything the Agency did or didn’t do; (iii) the Agency already knew the information when the Agency came across it and the Agency didn’t have any obligation to keep it secret; (iv) a third party provided the Agency with the information without requiring that the Agency keep it a secret; or (v) the Agency created the information on its own, without using anything belonging to the Client.
The Agency’s Confidential Information. While working with the Agency, the Client may come across, or be given, Agency information that is confidential. This is information like, business strategies, research & development notes, statistics about a website(s), and other information that is private. The Client promises to treat this information as if it is the Client’s own confidential information. If the Agency gives the Client written permission to use the information for another purpose, the Client may use the information for that purpose, as well. When this Contract ends, the Client must give back or destroy all confidential information, and confirm that it has done so. The Client promises that it will not share confidential information with a third party, unless the Agency gives the client written permission first. The Client must continue to follow these obligations, even after the Contract ends. The Client’s responsibilities only stop if the Client can show any of the following: (i) that the information was already public when the Client came across it; (ii) the information became public after the Client came across it, but not because of anything the Client did or didn’t do; (iii) the Client already knew the information when the Client came across it and the Client didn’t have any obligation to keep it secret; (iv) a third party provided the Client with the information without requiring that the Client keep it a secret; or (v) the Client created the information on its own, without using anything belonging to the Agency.
Third-Party Confidential Information. It’s possible the Client and the Agency each have access to confidential information that belongs to third parties. The Client and the Agency each promise that it will not share with the other party confidential information that belongs to third parties, unless it is allowed to do so. If the Client or the Agency is allowed to share confidential information with the other party and does so, the sharing party promises to tell the other party in writing of any special restrictions regarding that information.
LIMITATION OF LIABILITY. Neither party is liable for breach-of-agreement damages that the breaching party could not reasonably have foreseen when it entered this Contract.
Overview. This section transfers certain risks between the parties if a third party sues or goes after the Client or the Agency or both. For example, if the Client gets sued for something that the Agency did, then the Agency may promise to come to the Client’s defense or to reimburse the Client for any losses.
Client Indemnity. In this Contract, the Agency agrees to indemnify the Client (and its affiliates and their directors, officers, employees, and agents) from and against all liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding arising out of: (i) the work the Agency has done under this Contract; (ii) a breach by the Agency of its obligations under this Contract; or (iii) a breach by the Agency of the promises it is making in Section 5 (Representations).
Agency Indemnity. In this Contract, the Client agrees to indemnify the Agency (and its affiliates and their directors, officers, employees, and agents) from and against liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding arising out of a breach by the Client of its obligations under this Contract.
Assignment. This Contract applies only to the Client and the Agency. The Agency cannot assign its rights or delegate its obligations under this Contract to a third-party (other than by will or intestate), without first receiving the Client’s written permission. In contrast, the Client may assign its rights and delegate its obligations under this Contract without the Agency’s permission. This is necessary in the case, for example, another Client buys out the Client or if the Client decides to sell the work product that results from this Contract.
Arbitration. As the exclusive means of initiating adversarial proceedings to resolve any dispute arising under this Contract, a party may demand that the dispute be resolved by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules.
Modification; Waiver. To change anything in this Contract, the Client and the Agency must agree to that change in writing and sign a document showing their agreement. Neither party can waive its rights under this Contract or release the other party from its obligations under this Contract, unless the waiving party acknowledges it is doing so in writing and signs a document that says so.
Notices. (a) Over the course of this Contract, one party may need to send a notice to the other party. For the notice to be valid, it must be in writing and delivered in one of the following ways: personal delivery, email, or certified or registered mail (postage prepaid, return receipt requested). The notice must be delivered to the party’s address listed at the end of this Contract or to another address that the party has provided in writing as an appropriate address to receive notice. (b) The timing of when a notice is received can be very important. To avoid confusion, a valid notice is considered received as follows: (i) if delivered personally, it is considered received immediately; (ii) if delivered by email, it is considered received upon acknowledgment of receipt; (iii) if delivered by registered or certified mail (postage prepaid, return receipt requested), it is considered received upon receipt as indicated by the date on the signed receipt. If a party refuses to accept notice or if notice cannot be delivered because of a change in address for which no notice was given, then it is considered received when the notice is rejected or unable to be delivered. If the notice is received after 5:00 pm on a business day at the location specified in the address for that party, or on a day that is not a business day, then the notice is considered received at 9:00 am on the next business day.
Severability. This section deals with what happens if a portion of the Contract is found to be unenforceable. If that’s the case, the unenforceable portion will be changed to the minimum extent necessary to make it enforceable, unless that change is not permitted by law, in which case the portion will be disregarded. If any portion of the Contract is changed or disregarded because it is unenforceable, the rest of the Contract is still enforceable.
Signatures. The Client and the Agency must sign this document using DMA’s Electronic Signature Method. These electronic signatures count as originals for all purposes.
Governing Law. The laws of the state of Texas govern the rights and obligations of the Client and the Agency under this Contract, without regard to conflict of law principles of that state.
Entire Contract. This Contract represents the parties’ final and complete understanding of this job and the subject matter discussed in this Contract. This Contract supersedes all other agreements (both written and oral) between the parties.
Additional Work. The Client may occasionally require additional or amended services outside of the terms of this Service Agreement (collectively, “Additional Projects”). The Client will provide a detailed scope of work and labor quote for any Additional Project required by the Client. The Client will be charged accordingly for any of such additional work.
Cancellations and Refunds. All payments are made in-advance and are not refundable before the end of the subscription period. The Client hereby acknowledges and agrees that once the subscription fee is paid, the package already purchased cannot be canceled therefore, no payment made under this agreement will be refunded or creditable; this non-refund policy is applicable even if the Client chooses to terminate this contract. The Client agrees that it is also not entitled to a refund even if they are unsatisfied with the outcome of the marketing and branding strategy adopted by the Agency on its behalf.
Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under the Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, telecommunications outage not caused by the obligated Party, or other similar causes) (“Force Majeure Event”), the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party: (a) provides the other Party with prompt notice of the nature and expected duration of the Force Majeure Event; (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event; (c) provides periodic notice of relevant development, and (d) provides prompt notice of the end of such Force Majeure Event. Delays in fulfilling the obligations to pay hereunder are excused only to the extent that payments are entirely prevented by the Force Majeure Event.
The Comprehensive Packages offered by DMA are a Subscription-as-a-Service (SaaS). DMA is a technology company aimed at helping small businesses and startups promote their company. Our payment model allows for predictable budgeting, ongoing services, and no billable hours. We aim to add extra capacity to your business and truly make the relationship with our clients feel more like a partnership.