TERMS OF SERVICE
The best work comes out of great relationships. Honesty, respect and gratitude are the keys to a great relationship and therefore we have an interest in treating each other with these values at all times. As much as legal documents are important, what truly binds us is our drive to do great work with great people and to develop a relationship of mutual respect and trust.
The undersigned representative of Client has the authority to enter into this Agreement on behalf of Client. Client agrees to cooperate and to provide Markatects Corp. with everything needed to complete the Services as, when and in the format requested by Markatects Corp. and in a timely manner.
Markatects Corp. has the experience and ability to do everything Markatects Corp. agreed to for Client and will do it all in a professional and timely manner. Markatects Corp. will endeavor to meet every deadline that’s set and to meet the expectation for Services to the best of its abilities.
By signing this agreement client automatically confirms that client has indeed read and approved this entire agreement as well as the client proposal which was sent separately.
Markatects Corp. warrants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any obligation Markatects Corp. may have to others; (ii) none of the Services or Inventions or any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Markatects Corp.); (iii) Markatects Corp. has the full right to provide Client with the assignments and rights provided for herein; (iv) Markatects Corp. shall comply with all applicable laws in the course of performing the Services and (v) if Markatects Corp.’s work requires a license, Markatects Corp. has obtained that license and the license is in full force and effect (for example: license for photos stock use).
EXCEPT AS SET FORTH IN THIS ATTACHMENT B, Markatects Corp. DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, COMPLETENESS OR RESULTS TO BE DERIVED FROM THE WORK.
EXCEPT AS SET FORTH HEREIN, ALL DELIVERABLES ARE DELIVERED ON AN “AS-IS” BASIS.
Client understands that the services outlined in this agreement assist the client in reaching a certain level of online presence. If the client desires more presence/results, more work/strategies would need to be implemented which will increase fees. Markatects Corp. will not be held responsible for any damages or losses if client decides to refuse increasing budget/services after they have been consulted to do so in order to see more results. As companies and competition grow, services should grow with them. Fees will not be increased without written consent, but we do hold the right to refuse business and cancel all agreements if we feel we cannot continue to perform without upgrading services and Client refuses to upgrade.
Client also understands that if they do not provide the necessary requirements for us to complete the tasks we’ve agreed upon, it can result in low performance or an inability to continue our work. we are not held responsible for any damages or losses in profit or of any kind.
Confidentiality & Non-Disclosure
v1.0Page 3 of 5
Each party shall maintain, in the strictest confidence, all Confidential Information (as defined in the next sentence) of the other party. “Confidential Information” means all (i) nonpublic information (at the time of disclosure) disclosed by one party to the other party under this Agreement, provided such information is marked or indicated by the disclosing party to be confidential; (ii) and any information which ought reasonably be considered confidential with regard to the circumstances surrounding disclosure, whether or not such information is marked “Confidential”.
In the event a party is required to disclose Confidential Information pursuant to a judicial or other governmental order, such party shall, to the maximum extent permitted by law or opinion of counsel, provide the other party with prompt notice prior to any disclosure so that the party or its client may seek other legal remedies to maintain the confidentiality of such Confidential Information.
Each party receiving Confidential Information shall be responsible for any breach of this provision that is caused by any of its employees, affiliates, representatives or agents and such party agrees to indemnify and hold harmless the other party from and against any liabilities, claims, damages, losses, costs and expenses resulting, directly or indirectly, from any breach by a party, or any of its employees or independent Markatects Corp.s, of any provision of this Agreement. The obligations of this Section shall survive termination of this Agreement for a period of 3 years.
Paid Ad Fees
Client is responsible for paying all fees to the paid ad providers such as Google, Facebook & any other paid ad providers used. If client fails to pay their fees we are not held responsible for accounts being banned, shut down, suspended, or non-operative. We are not held responsible for any claims, actions, damages, liabilities, costs and expenses caused by Client’s (i) gross negligence. We are not held responsible for any damages or losses in profit of any kind due to unpaid invoices. If the ad account is created under Markatects Corp. main account on behalf of a client and client refuses to pay the fees associated with that account to the ad provider, client will be held responsible for the account and unpaid fees. Legal action may be taken if client refuses to pay fees, for unpaid fees hurt the reputation of Markatects Corp. with the ad provider.
Facebook Ad Compliance
“Facebook’s custom audiences feature enables you to create an audience using your data such as email addresses and phone numbers. When using Facebook’s custom audiences feature, your data is locally hashed on your system before you upload and pass such data to Facebook to be used to create your custom audience (the “Hashed Data”). Without limiting any agreement between you and Facebook, by clicking “I accept,” passing to Facebook the Hashed Data, or using custom audiences or advertising, you agree to the following:
- You represent and warrant, without limiting anything in these terms, that you have all necessary rights and permissions and a lawful basis to disclose and use the Hashed Data in compliance with all applicable laws, regulations, and industry guidelines. If you are using a Facebook identifier to create a custom audience, you must have obtained the identifier directly from the data subject in compliance with these terms.
- If you are providing Hashed Data, you agree to use only provide the agency with data that is owned by you as the advertiser and not to augment or supplement the data with other data except as expressly authorized by Facebook. You represent and warrant that you have the authority to use such data on their behalf and will bind the advertiser to these terms.
- You represent and warrant that the Hashed Data does not relate to data about any individual who has exercised an option that you have, directly or indirectly, committed to honouring or provided to opt out of having that data disclosed and used by you or on your behalf for targeted advertising. To the extent an individual exercises such an opt-out after you have used data relating to that individual to create a custom audience, you will remove that data subject from the custom audience.
- You instruct Facebook to use the Hashed Data for the matching process. Facebook will not share the Hashed Data with third parties or other advertisers and will delete the Hashed Data promptly after the match process is complete. Facebook will maintain the confidentiality and security of the Hashed Data and the collection of Facebook User IDs that comprise the custom audience(s) created from your Hashed Data (“your custom audience(s)”), including by maintaining technical and physical safeguards that are designed to (a) protect the security and integrity of data while it is within Facebook’s systems and (b) guard against the accidental or unauthorized access, use, alteration or disclosure of data within Facebook’s systems.
- Facebook will not give access to or information about the custom audience(s) to third parties or other advertisers, use your custom audience(s) to append to the information we have about our users or build interest-based profiles, or use your custom audience(s) except to provide services to you, unless we have your permission or are required to do so by law.
- Facebook may modify, suspend or terminate access to, or discontinue the availability of, the custom audiences feature at any time. You may discontinue your use of the custom audiences feature at any time. You may delete your custom audience(s) from the Facebook system at any time through your account tools.
- You may not sell or transfer custom audiences, or authorize any third party to sell or transfer custom audiences
- These Custom Audiences Terms and, to the extent applicable, the Data Processing Terms, govern the provision by you of Hashed Data to us and your use of the custom audiences feature, and your use of custom audiences for advertising. They do not replace any terms applicable to your purchase of advertising inventory from Facebook (including but not limited to the Facebook Advertising Guidelines at https://www.facebook.com/ad_guidelines.php), and such terms will continue to apply to your ad campaigns targeted to your custom audience. The custom audiences feature is part of “Facebook” under Facebook’s Terms of Service (https://www.facebook.com/legal/terms, the “Terms”), and your use of the custom audiences feature (including your use of data) is deemed part of your use of, and actions on, “Facebook.” In the event of any express conflict between these Custom Audiences Terms and the Terms, these Custom Audiences Terms will govern solely with respect to your use of the custom audiences feature and solely to the extent of the conflict. Facebook reserves the right to monitor or audit your compliance with these terms and to update these terms from time to time.
Ownership and Licenses
Markatects Corp. agrees that the deliverables and materials developed pursuant to this Agreement (including, without limitation, all presentations, writings, ideas, concepts, designs, text, plans, and other materials that Markatects Corp. conceives and develops pursuant to this Agreement, including all materials incorporated therein whether such materials were conceived or created by Markatects Corp. individually or jointly, on or off the premises of Client, or during or after working time) shall be treated as if the development of such deliverable constitutes a “work for hire” and shall be owned by Client upon payment of all fees due to Markatects Corp. pursuant to this Agreement.
In the event that any such material is considered not to be a “work made for hire,” Markatects Corp. hereby assigns all ownership (whether represented or not by a registered patent, copyright, trade secret) and other proprietary or rights, title and interest in such deliverables and materials to Client, and agrees to execute such documents as Client may reasonably request, in order to assist Client in obtaining and protecting such rights.
Markatects Corp. agrees that Markatects Corp. has no interest in any materials that Markatects Corp. submits to Client, including, without limitation, any security interest therein, and hereby releases to Client any interest therein (if any) which may be created by operation of law. Except as otherwise agreed to in writing and as necessary in the performance of this Agreement, Markatects Corp. shall have no rights to license, sell or use the deliverables or materials developed under this Agreement, or any portion thereof.
Client assures that all copywrite material (content, photo stock, videos, etc) belong to them and/or are licensed to them. Markatects Corp. will not be held responsible for any materials given to them by client which are against copywrite laws.
Relationship of Parties
Nothing contained in this Agreement shall be construed to create a partnership, joint or co-venture, agency, or employment relationship between Markatects Corp. and Client. Both Parties agree that Markatects Corp. is, and at all times during this Agreement shall remain, an independent Markatects Corp..
Term & Termination
Either Party may terminate this Agreement at any time, with or without cause, prior to work starting. If work initiates and client cancels, client is responsible for paying all fees for work that has be done.
Either Party also may at any time terminate the Agreement immediately if: (i) the other party commits a breach of this Agreement and such party does not cure a breach within 5 days of written notice from the non-breaching party of such breach.
If this Agreement is terminated earlier by Client without cause, Client agrees to pay Markatects Corp. any and all sums which are due and payable for: (i) services provided as of the date of termination; and (ii) expenses already incurred, including those from documented non-cancelable commitments. Markatects Corp. agrees to use the best efforts to minimize such costs and expenses.
v1.0Page 4 of 5
Termination for any reason shall not affect the rights granted to Client by Markatects Corp. hereunder. Upon termination, Client shall pay to Markatects Corp. all undisputed amounts due and payable. If upon termination Client has not paid undisputed fees owed for the material, deliverables or Services provided by Markatects Corp. as of the date of termination, Client agrees not to use any such
material or the product of such Service, until Client has paid Markatects Corp. in full. Any provisions or clause in this Contract that, by its language or context, implies its survival shall survive any termination or expiration of this Agreement. Notwithstanding anything to the contrary in this Agreement, Markatects Corp. shall retain a perfected security interest in the deliverable or material until Client has made payment in full for all undisputed amounts as of the termination date. Markatects Corp. hereby agrees to release and waive its security interest in the deliverable and material upon receipt of full payment for all undisputed amounts.
A cancellation fee is not applicable. We only expect that all withstanding balances be paid in full prior to cancellation.
Client understands the importance of paying Markatects Corp.s in a timely manner and wants to maintain a positive working relationship with Markatects Corp. to keep the project moving forward.
Invoice will be sent 7 days prior to due date. Payments for each invoice delivered by Markatects Corp. to Client are due within 7 days of receipt. In case of overdue payments, Markatects Corp. reserves the right to stop work until payment is received.
Markatects Corp. accepts various methods of payment which you will agree upon prior to invoicing: Credit Card, Paypal, E-transfer or automatic withdrawal from a credit card.
A full months payment is due upon the acceptance of this Agreement and before work will begin.
Client shall reimburse all expenses that are reasonable and that have been authorized in writing by Client in advance; payable within 7 days of itemized invoice.
Regarding website development / landing pages, client will provide feedback up to 4 times and Markatects Corp. will revise work up to 4 times unless agreed upon otherwise.
Any material changes to the Services, including work to be performed and related fees must be approved by the prior written consent of both parties.
Indemnification and Limitation of Liability
Markatects Corp. agrees to indemnify, defend and hold harmless Client from any and all claims, actions, damages, and liabilities (excluding, without limitation, attorneys’ fees, costs and expenses) arising (i) through Markatects Corp.’s gross negligence ; (ii) out of any claim that the materials or deliverables, or any portion thereof, in fact infringes upon or violate any proprietary rights of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach or alleged breach of any of Markatects Corp.’s representations, warranties or agreements herein.
Client agrees to indemnify, defend and hold harmless Markatects Corp. from any and all claims, actions, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising in any manner caused by Client’s (i) gross negligence; (ii) out of any claim that Client provided content, or any portion thereof in fact infringes upon or violate any proprietary rights of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach or alleged breach of any of Client’s representations, warranties or agreements herein.
TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, Markatects Corp. SHALL NOT BE LIABLE TO THE CLIENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOST PROFIT, LOSS OF BUSINESS OR THE LIKE) ARISING OUT OF OR RELATING TO THIS ATTACHMENT B OR THIS AGREEMENT, Markatects Corp.’S PERFORMANCE HEREUNDER OR DISRUPTION OF ANY OF THE FOREGOING, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER SOUNDING IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, Markatects Corp.’S AGGREGATE LIABILITY UNDER THIS ATTACHMENT B AND THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AGGREGATE COMPENSATION PAID BY CLIENT TO THE Markatects Corp. UNDER THIS AGREEMENT.
Right to Authorship Credit
Both Parties agree that when asked, Client must properly identify Markatects Corp. as the creator of the deliverables. Client does not have a proactive duty to display Markatects Corp.’s name together with the deliverables, but Client may not seek to mislead others that the deliverables were created by anyone other than Markatects Corp..
v1.0Page 5 of 5
Client hereby agrees Markatects Corp. may use the work product as part of Markatects Corp.s portfolio and websites, galleries and other media solely for the purpose of showcasing Markatects Corp.s work but not for any other purpose.
Markatects Corp. will not publish any confidential or non-public work without Client’s prior written consent.
Governing Law and Dispute Resolution
This Agreement and any dispute arising hereunder shall be governed by the laws of the jurisdiction of Markatects Corp.’s primary business location (the “Markatects Corp.’s Jurisdiction”), without regard to the conflicts of law provisions thereof. For all purposes of this Agreement, the Parties consent to exclusive jurisdiction and venue in the courts located in the Markatects Corp.’s jurisdiction.
The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
No failure or omission by a party in the performance of any obligation under this Agreement shall be deemed a breach of this Agreement or create any liability if such failure or omission shall arise from any cause or causes beyond the reasonable control of such party which cannot be overcome through that party’s reasonable diligence, e.g., strikes, riots, war, acts of terrorism, acts of God, severe illness, invasion, fire, explosion, floods and acts of government or governmental agencies or instrumentalities.
Any notices to either Party made pursuant to this Agreement shall be made and sent (i) via mail or a nationally recognized carrier to the other Party’s address on file; (ii) or via e-mail to the other Party’s designated representative. Each Party shall have an independent obligation to provide and update, as necessary, the mail and e-mail address on file for such notices. Notices sent by e-mail shall be deemed effective once sent if no error or “bounce back” has been received within twenty-four (24) hours of submission.
The section and subsection headings used in this Agreement are for convenience only and will not be used in interpreting this Agreement. Both parties have had the opportunity to review this Agreement and neither party will be deemed the drafter of this Agreement for the purposes of interpreting any ambiguity in this Agreement. The parties agree that this Agreement may be signed by manual or facsimile signatures and in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. In the event that any provision of this Agreement will be determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted, that specific provision will be eliminated so that this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement, along with this Attachment B, and any exhibits, schedules or attachments, between the Parties supersedes any previous arrangements, oral or written, and may not be modified in any respect except by a future written agreement signed by both Parties.
These terms may vary based on the independent terms and agreement sent to each individual client, so be sure to read the entire agreement and review adjustments to your unique agreement prior to signing. We are not held responsible for any damages/losses due to not reading the agreement sent to you.