ANN’S SOCIAL MEDIA & MARKETING, LLC
Terms of Services Agreement
1. SUSPENSION FOR NON-PAYMENT
ASMM reserves the right to suspend or cancel any services provided to the Client if any scheduled payment is missed, any invoice is not paid by its due date, any credit card payment made by the client is declined/disputed, and/or if any payment made by the Client is returned for insufficient funds or a stop-payment.
2. FAILURE TO PAY
If the Client fails to make payment as agreed, ASMM reserves the right to pursue any appropriate collection action allowed by law without notice to the Client. In the event that ASMM pursues any collection action(s), the Client shall be responsible for all costs, expenses and attorney fees incurred therein, as well as as prejudgment interest at 6% per annum. Failure to pay includes, but is not limited to presentment of checks which are dishonored for any reason, declined credit cards, or partial payments unless otherwise previously permitted in writing by ASMM.
3. EXPENSES
Unless explicitly covered in the Scope of Work, the Client shall reimburse ASMM for all costs and expenses incurred in the course of performing the agreed work, including, but not limited to the payment of any sales taxes due.
4. RESTART FEE
Projects that are dormant for 45 days will incur a $500 restart fee which is payable before work will resume.
5. TERM
Client and ASMM agree that this contract shall have a term of twelve months (minimum 12 months), shall commence on the day of signing the proposal. Because of the nature of the product that ASMM provides, the contract shall automatically renew for twelve months (12 months) with a monthly service rate increase of eight percent (8%) at the conclusion of the term unless Client notifies ASMM in writing of its desire to cancel no less than 30 days from the date of termination.
6. CLIENT RESPONSIBILITIES
For the purposes of providing these services, Client agrees:
• To provide ASMM with access to its website(s) and social media platforms when applicable for the purpose of providing Services.
• To properly convey to ASMM the information which needs to be changed or added.
• To provide photos and videos to be used on social media platforms on a regular basis or to facilitate opportunities for ASMM to take photographs and videos for social media use.
7. CLIENT ACKNOWLEDGEMENTS
Client understands, acknowledges and agrees that:
• ASMM has no control over and will not be responsible for the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future. Client's web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.
• ASMM is not responsible for changes made to Client's web site(s) by other parties.
• ASMM will not repair Client's website(s) that became compromised, hacked, or otherwise defaced or infected prior to ordering Services.
• In the event that ASMM is asked to attempt a recovery or repair of a Client’s website, additional charges will apply, and successful recovery or repair is not guaranteed.
• Availability of backups is not guaranteed.
8. TECHNOLOGY USED
ASMM will use the design and development techniques that it deems appropriate for each assignment. ASMM reserves the right to charge additional fees to employ specific design and development techniques, personnel or software requested by the client.
9. MUTUAL CONFIDENTIALITY
ASMM recognizes and acknowledges that each Client agreement creates a confidential relationship between ASMM and Client and that information concerning Client's business affairs, customers, vendors, finances, properties, methods of operation, computer programs, and documentation, and other such information, whether written, oral, or otherwise, is confidential in nature.Furthermore, the Client recognizes and acknowledges that information concerning ASMM's Client's business affairs, customers, vendors, finances, properties, methods of operation, computer programs, and documentation, and other such information, whether written, oral, or otherwise, is confidential in nature. All such information concerning Client and ASMM is hereinafter collectively referred to as "Confidential Information". Information shall not be considered confidential if it is already publicly known through no act of either ASMM or the Client.
10. MUTUAL NON-DISCLOSURE
ASMM agrees that, except as directed by the Client, it will not at any time during or after the term of the Agreement disclose any Confidential Information to any person whatsoever, except as required by law. Upon the termination of this Agreement ASMM will turn over to the Client all documents, papers, and other materials in its possession or control that were provided by the Client during the execution of the Client's agreement. Furthermore, the Client agrees that, except as directed by ASMM, it will not at any time during or after the term of this agreement disclose any Confidential Information to any person whatsoever. However, to the extent that ASMM pursues collection or any other legal action against the Client, or is required to defend against legal action brought against it, ASMM shall not be prohibited from releasing Confidential Information to the extent that same may be necessary to advance its position before a court or other tribunal.
11. RIGHTS TO DEVELOPMENT
All inventions, creations, computer programs and code, software, documentation, specifications, training materials, modifications to software or documentation and all other computer code and/or programs, writings,
designs, and specifications developed by ASMM under this agreement, as well as all papers, records, sound recordings, pictorial reproductions, drawings or other graphical representations, and any other work product and the like prepared, produced or delivered by ASMM in the performance of services under this agreement, shall hereinafter be referred to as "Works." ASMM shall own all worldwide right, title, and interest, including copyright,trademark, patent and other intellectual property rights (collectively called the "Intellectual Property Rights") in the Works and in all other material discovered, developed, learned, created, produced, or provided by ASMM (or its employees or subcontractors) under this agreement.
12. NO SOLICITATION BY THE CLIENT
During the term of this Agreement, and for a period of one (1) year after the termination of this Agreement, the Client agrees that it will not, on its behalf, or on behalf of any other person or entity, directly or indirectly, solicit,
attempt to solicit, hire, attempt to hire, employ, attempt to employ, associate or attempt to associate in business with any person employed by ASMM or any person who has left the employ of ASMM within the preceding three (3) months, or discuss any potential employment or business association with such persons, regardless of who initiates the discussion or how the person(s) come to the Client's attention, without written agreement by ASMM. Additionally, the Client shall not attempt to or actually recruit, solicit or induce any employees of ASMM to terminate their employment with, or otherwise cease their relationship with ASMM. In the event that the Client unknowingly does approach or is approached by an employee of ASMM, the Client agrees to cease and desist all negotiations and/or contact with them upon notification of the violation by ASMM. Use of general employment advertising and independent employment agencies, if not directed at one or more of ASMM's employees, shall not constitute solicitation for the purposes herein.
13. SOFTWARE LICENSES AND UNAUTHORIZED USE
Client acknowledges and agrees that all software used to fulfill the deliverables remains subject to the terms of its respective license. All software created by ASMM is licensed for non-exclusive use as part of the deliverables and may not be modified, duplicated, sold, transferred, assigned, or used in any other manner without the express written permission of ASMM. Furthermore, the Client will indemnify and hold harmless ASMM against all claims and expenses arising from uses of which the Client does not have rights to or authority to use. The Client will be responsible for payment of any special licensee or royalty fees resulting from use of programs that require such payments.
14. CLIENT WARRANTIES
Client represents and warrants that the products and services provided by ASMM will not be used by the Client or anyone on their behalf in any manner that: (a) violates any law or regulation, including, without limitation, the laws and regulations governing export control; (b) is defamatory or libelous; (c) is pornographic or obscene; or (d) contains any viruses, Trojan horses, worms, time bombs or other computer programming devices which are intended to damage a user's system or data or prevent the user from using same. Client further represents and warrants that (a) Client has all rights necessary for the production, distribution, exhibition and exploitation of the products and services described in this Agreement, and (b) there is no outstanding contract, commitment or agreement to which Client is a party or legal impediment of any kind known to Client which conflicts this Agreement or might limit, restrict or impair the rights granted hereunder. Client further warrants that it has all rights, under all applicable patent, trademark copyright, and other intellectual property laws, to use all materials
which it provides to ASMM to use in furtherance of ASMM’s work for Client. As such, Client hereby agrees to indemnify and hold harmless ASMM from any and all actions which might be brought against ASMM as a result of Client’s failure to properly secure such rights, notwithstanding whether such failure was intentional or otherwise. From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Client warrants and agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend ASMM and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client's exercise of Internet electronic commerce. Client guarantees to ASMM that Client's website and every other instrumentality of Client’s to which ASMM’s computers and other equipment will be exposed has not been compromised, hacked, or otherwise defaced or infected with any virus or other malicious data or software prior to ordering Services. Client agrees that should any such material infect ASMM’s hardware, systems or software, that it will be liable to ASMM for all consequential damages caused by same.
15. LIMITATION OF LIABILITY
Client agrees that ASMM, and its agents, servants or employees shall not be liable for any incidental or consequential damages that arise from ASMM's performance in this agreement or ASMM's failure to perform any aspect of this agreement or failure to do so in a timely manner. Furthermore, ASMM disclaims all implied warranties, including the warranty of merchantability and fitness for a particular use, and makes no warranty of any kind, whether express or implied, with regard to any third party products, third party content or any software, equipment, or hardware obtained from third parties. ASMM makes no guarantees of any particular results for the Client.
16. INTEGRATED AGREEMENT
The Client agrees that this Agreement is the entire agreement between the Client and ASMM regarding the subject matter of the Agreement; and supersedes all prior or contemporaneous representations, understandings, or agreements regarding the subject matter of the Agreement.
17. SEVERABILITY
The Client agrees that if any of the terms or conditions in their Agreement with ASMM are found to be invalid or unenforceable by a government body, the remaining terms or conditions of this Agreement shall not be affected by the finding and shall continue to apply.
18. TERMINATION BY CLIENT
To terminate any product or service, the Client must submit a written thirty (30) days’ notice of same via Certified U.S. Mail-Restricted Delivery requiring signature, email, or fax that includes the Client's legal name, address, contact information, signature, and the reason for termination. Upon receipt of the Client's termination request, ASMM will cancel the Product and/or Service specified by the Client and will stop all work concerning the terminated work. The acceptance of a termination request by ASMM does not relieve the Client from any fees due for services rendered prior to the receipt of the termination request or relieve the Client from any amounts due on a minimum length contract or for monthly service charges that come due during the 30- day period. The Client agrees that by terminating any Agreement or service with ASMM, all services, rights, and other obligations owed by ASMM to Client under the Agreement with respect to cancelled products and services have been satisfied and all future obligations regarding same are discharged.
19. TERMINATION BY ASMM
ASMM reserves the right to terminate any product or service at any time without notice, refund, or compensation in the event that the Client does anything that in ASMM's sole discretion violates any of the terms or conditions of this Agreement; acts in an unprofessional or abusive manner towards any of ASMM's employees, contractors, or affiliates; damages ASMM's good name or standing in the community; damages the good name or standing in the community of any of ASMM's affiliates, subsidiaries, or partners; uses any service provided by ASMM for pornography, sex-related merchandising, promoting illegal activity, promoting content that may be considered detrimental to the public health, safety, or welfare; or interfering with other Clients' use and enjoyment of any service provided by ASMM. Clients that violate any of these conditions will be subject to a $250 per hour charge for administration and investigation costs.
20. CHOICE OF LAW
This Agreement shall be treated as though it were executed and performed in Anne Arundel County, Maryland, and shall be governed by and construed in accordance with the laws of the United States of America and of the State of Maryland, without regard to conflict of law principles. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. All legal proceedings arising in any way out of this Agreement shall be brought solely either the District Court or Circuit Court for Anne Arundel County, Maryland. The Client expressly submits to the jurisdiction of said courts; and the Client consents to extra-territorial service of process, subpoenas, and all other forms of compulsory process without the
need to open an action in the jurisdiction in which client is located for the purpose of obtaining service on Client.
21. ATTRIBUTION FOR WORK DONE
ASMM shall be given credit on all documentation, packaging, artwork, media, and websites arising from this agreement. Such attribution may include a hyperlink to ASMM's website.
22. NO WAIVER
Any failure or refusal of ASMM to exercise any right or form of relief described herein against Client shall not constitute a waiver of the right to exercise such rights or relief in the future.
23. RELATIONSHIP OF PARTIES
ASMM, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Client does not undertake by this Agreement, or otherwise, to perform any obligation of ASMM, whether by regulation or contract. In no way is ASMM to be construed as the agent or to be acting as the agent of Client in any respect, any other provisions of this Agreement notwithstanding.
24. SCOPE OF WORK
The services chosen by the client at time of payment are the only services which ASMM will perform. ASMM shall not be obligated to perform any other work for Client. Any demands by Client to perform any work which is outside the chosen services will be charged at a rate of $150.00 per hour unless otherwise agreed prior to commencement of such out-of-scope work.