MARKETING SERVICES AGREEMENT
This Marketing Services Agreement (“Agreement”), dated as of is entered into by and between Anna-Vija Marketing Strategy (“Consultant”) and (“Client”).
WHEREAS, Consultant provides customers with business marketing services; and
WHEREAS, Client desires to retain Consultant to provide certain business marketing services as more specifically set forth in this Agreement and its attachments (“Services”).
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- Marketing Services.
Consultant agrees to provide Client those services as set forth in Statements of Work attached to this Agreement from time to time (“Services”). Such Statements of Work shall set forth:
(a) the type of Services that Consultant is to provide Client;
(b) the fee schedule and other charges for such Services;
(c) the term of and duration of the Services, including any renewal options; and
(d) all other specifications related to the Services to be provided by Consultant to Client.
All Statements of Work must be executed by both parties in order to be considered a part of this Agreement. After a Statement of Work has been executed, Consultant shall provide the Services in accordance with the Statement of Work and the terms of this Agreement. Each signed Statement of Work is incorporated by reference into this Agreement. The parties may amend an executed Statement of Work only by a written agreement of the parties that identifies itself as an amendment to the applicable Statement of Work. In the event of a conflict between a Statement of Work and the terms of this Agreement, the terms of the Statement of Work take precedence.
- Term and Termination.
The term of this Agreement shall continue for the entire period of time that Consultant is providing Services to Client under a Statement of Work. In the event that Client enters into a monthly retainer plan (Consultant offers six (6) month and twelve (12) month options), the term of the retainer plan shall continue for the entire term of such plan as set forth in the Statement of Work, and upon the termination of the term set forth in the Statement of Work, the recurring retainer plan shall automatically renew for subsequent renewal terms equal to the initial term unless terminated by a party by thirty (30) days’ written notice prior to renewal.
2.2 Consultant’s Right to Terminate.
Client agrees and acknowledges that Consultant may terminate this Agreement upon three (3) days written notice to Client upon the occurrence of any one of the following events: (1) Any willful or intentional breach of any substantive material term of this Agreement; or (2) termination for Client’s failure to pay any amounts due under this Agreement within fifteen (15) days of when such payments are due. Client agrees that upon such termination under this Section, Consultant shall have no other duties to Client under this Agreement or any Statements of Work entered into by the parties. However, Client shall remain liable for all obligations under this Agreement, including but not limited to, all compensation due under the Statements of Work entered into by the parties. In the event that a Statement of Work provides for a guaranteed term of service of six (6) months, Client agrees that fifty percent (50%) all remaining fees due under such Statement of Work shall become immediately due; and in the event that a Statement of Work provides for a guaranteed term of service of twelve (12) months, Client agrees that sixty percent (60%) all remaining fees due under such Statement of Work shall become immediately due.
2.3 Client’s Right to Terminate.
In the event that Consultant fails to perform its obligations under this Agreement or an attached Statement of Work, within thirty (30) days of learning of such failure, Client must notify Consultant in writing of the failure. In the event that Consultant fails perform such obligations within fifteen (15) days of receiving written notice, Client may terminate this Agreement by providing Consultant written notice. Client agrees that upon such termination under this Section, Client shall be obligated to pay Consultant for those Services provided to Client prior to termination of this Agreement.
In the event that Client attempts to terminate this Agreement for any other reason, Client shall remain liable for all obligations under this Agreement, including but not limited to, all compensation due under the Statements of Work entered into by the parties. In the event that a Statement of Work provides for a guaranteed term of service of six (6) months, Client agrees that fifty percent (50%) all remaining fees due under the Statement of Work shall become immediately due; and in the event that a Statement of Work provides for a guaranteed term of service of twelve (12) months, Client agrees that sixty percent (60%) all remaining fees due under such Statement of Work shall become immediately due.
Consultant may require a deposit for certain Services provided to Client under a Statement of Work. In the event that Consultant requires a deposit for Services, the Statement of Work shall set forth the amount of such deposit and Consultant shall have no obligation to perform under a Statement of Work until such deposit has been paid in full by Client.
Consultant shall invoice Client monthly or annually (as selected by client) for all Services provided to Client according to the fee schedule set forth in the Statements of Work entered into by the parties.
If Client has selected a monthly retainer plan with Consultant, Consultant shall invoice Client monthly for such monthly retainer amount with the first month’s retainer payment being due upon the execution of the Statement of Work.
If Client has selected an annual retainer plan with Consultant, Consultant shall invoice Client annually for such annual retainer amount with the first year’s retainer payment being due upon the execution of the Statement of Work.
Consultant shall add to all fees charged by Consultant for the Services provided under this Agreement, the appropriate taxes required to be charged for such Services, if any.
Consultant may incur certain expenses in providing Services to Client which Consultant may require Client to reimburse. Consultant shall provide Client with prior notice before incurring an expense for Client, and Client agrees to reimburse for all expenses approved by Client. All expenses due under this Section shall be billed on Client’s monthly invoice.
3.5 Services Outside the Statement of Work.
Client agrees that in the event that Consultant provides any services to Client that are not specifically set forth in the Statement of Work or beyond the scope of the Statement of Work, as determined by Consultant, Client shall pay Consultant for such additional services under a separate Statement of Work. Consultant shall invoice Client for any such additional services according to the terms of the applicable Statement of Work.
3.6 Rush Fees.
Client agrees and acknowledges that Consultant shall not be obligated to deliver any deliverable set forth in a Statement of Work in less than forty eight (48) hours time unless Consultant has agreed to such shorter deadline in writing and Client has agreed to pay Consultant an additional rush fee.
3.7 Payment of Invoices.
Client agrees to pay all invoices within ten (10) days of the day that the invoice is mailed by Consultant. Client may pay invoices by having Consultant automatically charge a credit/debit card via PayPal on file or by cash/check (with a credit card on file as back up).
In the event that Client pays by cash/check and fails to pay any invoice within sixteen (16) days of the day that the invoice is mailed, Client agrees that Consultant may charge the credit card on file.
3.8 Late Payments.
In the event that Client fails to make any payment when due and Consultant is unable to charge Client’s credit card on file, Client agrees to pay to Consultant a Fifty Dollar ($50.00) late charge, and Client further agrees that Consultant may cease performance under this Agreement until Consultant receives payment and/or may terminate this Agreement without any further obligation to Client to perform under this Agreement as set forth under Section 2.2. Client further agrees that interest will accrue at a rate of ten percent (10%) per annum on all unpaid invoices or at the maximum rate allowed by law, whichever is greater.
3.9 Fee Increases.
Consultant reserves the right to increase fees upon sixty (60) days’ written notice to Client, and upon such notice, Client shall have the option to object by providing Consultant with written notice of objection to such price increases. In the event that Client objects, Consultant may either (a) continue under this Agreement at the original fees; or (b) terminate this Agreement within sixty (60) days’ of receipt of Client’s written objection. In the event that Client fails to object during the sixty (60) day period, the fee increase will go into effect.
Client agrees and acknowledges that the Consultant’s ability to successfully provide the Services will require the reasonable cooperation of Client. Therefore, Client agrees that
(a) Client shall provide Consultant, its employees, agents, subcontractors, and affiliates, with all the information necessary for Consultant to perform the Services; and
(b) Client will make available to Consultant, its employees, agents, subcontractors, and affiliates, those members of Client’s personnel that Consultant deems necessary for Consultant to perform the Services.
- Use of Third Parties.
5.1 Third Party Contractors.
Consultant may, at its option, engage subcontractors or other third parties to perform any Services under a Statement of Work, but in all instances Consultant shall remain responsible for performance under this Agreement. In some instances, third party services providers may communicate directly with Client in order to provide the Services, however in all instances, Client shall remain a client of Consultant.
From time to time, Consultant may receive commissions or other fees from third party subcontractors but Consultant shall ensure that such fees are not passed on to Client and Consultant shall not make contracting decisions regarding third party subcontractors based on such commissions and fees.
5.3 Scheduling of Appointments with Third Party Contractors.
In the event that the services of a third party provider require Consultant to schedule a meeting or session with a third party provider (for example, a photographer), Consultant shall coordinate the scheduling of the appointment or session on Client’s behalf. In the event that Client cancels or modifies the appointment or session on less than 48 hours notice to Consultant or fails to attend such appointment or session, Client shall be billed a one time cancellation fee of $150 pursuant to Section 3.4.
- Delivery and Acceptance.
Consultant shall deliver all work performed under the Statement of Work in the manner provided for in the Statement of Work. In the event that no manner is provided, all work shall be delivered to Client by email. If Client believes any material defects exist in the work, Client shall notify Consultant by responding by email, or in writing, specifying such defects in sufficient detail to allow Consultant to remedy the problems within ten (10) days of delivery. There shall be no charges to the Client for revisions or corrections or additions made necessary by errors on the part of Consultant.
Acceptance may be made by any employee of Client in writing, which shall include email, and Client shall be bound by such acceptance unless Client has designated a specific employee or agent of Client to review and accept the work on its behalf in the Statement of Work. After the acceptance of the work, Consultant will not be liable for, and Client agrees to hold Consultant harmless for, any errors or defects in the project.
Any changes requested by the Client outside the scope of the Statement of Work shall be considered additional work and Client shall be responsible for paying for such alterations and other changes. However, Consultant shall not be obligated to perform additional work unless a new Statement of Work is agreed upon by both parties.
Once Consultant has begun to work on a project, any delay by Client from the schedule set forth in the Statement of Work may invalidate the estimated fees and timetable set forth in the Statement of Work. In such event, Consultant may choose to invoice Client for work completed to date and submit a new or amended Statement of Work for Client’s approval. Consultant has no obligations to continue the Services or complete a project unless Client approves the new or amended Statement of Work within the time set forth in such Statement of Work.
Client agrees to provide Consultant with access to its social media pages, websites, computer systems, and networks as may be necessary for Consultant to perform the Services under this Agreement. Client also agrees that Consultant may access its social media pages, websites, computer systems, and networks via telephone, data line, Internet connection, or other means of communication, in order to perform the Services. Client shall provide Consultant with the user ID and the password for its social media pages, websites, computer systems, and networks, as may be necessary. All login information and passwords provided to Consultant by Client are provided to Consultant for Client’s benefit. Therefore, Client releases Consultant for any liability or responsibility for any loss or damage that is related to Consultant’s use of any of the login information and/or passwords.
- Ownership of Deliverables.
Unless otherwise stated in the Statement of Work, the Services shall not be considered “work for hire” and Consultant shall retain all copyright and other intellectual property rights in the project deliverables along with all processes, designs, drawings, images, records, software, programs, databases, materials, applications, and any other intellectual property developed by Consultant pursuant to a Statement of Work.
However, Consultant shall grant to Client a perpetual, worldwide right to use, copy, modify, display, and distribute the project deliverables, subject to the rights and licenses applicable to any third party content associated with the project deliverables, in the manner contemplated in the Statement of Work. Client specifically agrees that: (a) Client may not use the project deliverables in any manner not contemplated under the Statement of Work; (b) Client may not resell or re-license the project deliverables in any form without Consultant’s prior express written consent; and (c) Consultant may use the underlying intellectual property of the project deliverables for any other purpose. However, during the term of this Agreement and upon the termination of this Agreement, Client may request to purchase the rights to use the project deliverables outside the scope of the Statement of Work and this Agreement for an additional fee, but nothing in this Section shall require Consultant to sell the rights to use the project deliverables to Client. In regards to Client owned content, Consultant agrees that Client shall retain all of its rights to the Client owned content, except that Client hereby grants Consultant a limited, royalty free license to use, modify, display and distribute the Client owned content solely as required to perform Consultant’s obligations under this Agreement.
Each party recognizes and acknowledges that during Consultant’s performance of Services to Client: (a) Consultant or its agents may be exposed to files of Client which constitute special and unique assets of Client and which include, but are not limited to, confidential information concerning customers, potential clients, financial information, software ideas, software, development materials, trade secrets, vendors, suppliers, business procedures, devices or business methods; and (b) Client or its agents may be exposed to information of Consultant which constitute special and unique assets of Consultant and which include, but are not limited to, confidential information concerning processes, designs, methods, software ideas, software, development materials, trade secrets, vendors, suppliers, business procedures, devices or business methods (all referred to as “Confidential Information”). Each party agrees that at no time during or following the term of this Agreement, or following termination of its relationship with Client for whatever reason or cause, shall a party disclose or make accessible to anyone, or make use of (other than in the regular course of the business of Consultant) Confidential Information of the other party. However, Consultant is not restricted from using, at any time during or after the termination of this Agreement with Client, any information in the public domain, or any skill, or other knowledge not protected by the terms of this Agreement. Each party agrees and acknowledges that any breach of the covenants contained in this Agreement will cause irreparable injury and damages to the non-breaching party for which there is no adequate remedy at law, and as to which money damages cannot be readily ascertained. Accordingly, the breaching party consents in such event to the granting of injunctive relief against any continuing breach, together with any other legal remedy available to the non-breaching party.
- Independent Contractor.
The parties to this Agreement intend to create the relationship of an independent contractor, and Consultant will not become, by reason of its performance under the terms of this Agreement, an agent or employee of Client, and no joint enterprise or partnership is intended by this Agreement.
- Limitation of Liability.
CONSULTANT MAKES NO OTHER REPRESENTATIONS, WARRANTIES, OR GUARANTIES, WHETHER EXPRESS OR IMPLIED, EXCEPT FOR THOSE SET FORTH IN THIS AGREEMENT IN WRITING. IN NO EVENT SHALL CONSULTANT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES THAT MAY BE SUFFERED OR INCURRED BY CLIENT OR ANY PERSON OR ENTITY AFFILIATED OR ASSOCIATED WITH CLIENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES RESULT FROM PERFORMANCE, ATTEMPTED PERFORMANCE, OR NON-PERFORMANCE, INCLUDING WITHOUT LIMITATION, DAMAGES RESULTING FROM THE USE OF ANY WORK PRODUCT, SERVICES, IMPLEMENTATION OF ANY RECOMMENDATIONS, INACCURACY OR INABILITY TO USE RESULTS FROM THE SERVICES, DELAY OF DELIVERY OR COMPLETION OF THE SERVICES, OR LOSS OF PROFITS, DATA, BUSINESS, OR GOODWILL. IN ADDITION, THE LIABILITY OF CONSULTANT AND ITS EMPLOYEES AND SUBCONTRACTORS, AND ALL PERSONS AND ENTITIES AFFILIATED OR ASSOCIATED WITH CONSULTANT, FOR LOSSES, DAMAGES, LIABILITIES, SUITS AND CLAIMS, REGARDLESS OF THE FORM OF ACTION AND THE PERSON OR ENTITY BRINGING SUCH ACTION, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CLIENT TO CONSULTANT DURING THE PRIOR TWELVE MONTH PERIOD FOR THE SERVICES THAT CAUSE THE LOSS OR INJURY OR WHICH ARE THE SUBJECT MATTER OF THE CLAIM OR CAUSE OF ACTION.
- Attorneys’ Fees.
In the event of any arbitration or litigation arising out of this Agreement, if Consultant prevails, Client shall pay Consultant’s costs of arbitration or litigation, including any reasonable attorneys’ fees. Furthermore, if Consultant must initiate collection proceedings, Client shall pay Consultant’s cost of collection, including reasonable attorneys’ fees.
This Agreement and any rights under it may not be assigned by Client except upon the prior written consent of Consultant. Consultant reserves the right to assign this Agreement without the consent of Client.
- Governing Law and Venue.
This Agreement shall be governed by the laws of the State of Tennessee where permitted. Any dispute between Consultant and Client shall be submitted to a court of competent jurisdiction located in Davidson County, Tennessee.
All notices, demands and requests which may be given or which are required to be given by either party to the other must be in writing, unless otherwise specifically provided for in this Agreement, shall be: (a) mailed by express, registered or certified mail of the United States Postal Service, return receipt requested, postage prepaid or (b) delivered to a nationally recognized overnight courier service for next business day delivery, to its addressee at such party’s address as set forth below:
Attention: Anna-Vija McClain
2625 Morganmeade Dr.
Nashville, TN 37216
This Agreement and any executed Scopes of Work shall be the entire agreement of the parties relating to the subject matter hereof, and supersede all prior and contemporaneous negotiations, correspondence, understandings, and agreements of the parties relating to the subject matter hereof.
- Waiver and Severability.
No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. If any provision of this Agreement becomes or is deemed to be invalid, illegal or unenforceable, it shall be deleted and the remainder of the Agreement and the related documents pursuant hereto shall remain in full force and effect. In the event of a conflict between the provisions in the body of this Agreement and any attachments, the terms in the body of this Agreement will control.
The parties hereby agree to the terms and conditions contained in this Agreement on the date specified at purchase.
SCOPE OF WORK
This Scope of Work, dated at purchase, is entered into by and between Anna-Vija Marketing Strategy (“Consultant”) and (“Client”).
Term of Service:
As stated/accepted during the online purchase.
Compensation for Services:
As stated/accepted during the online purchase. All fees are subject to change.
Services to be Provided:
As stated/accepted during the online purchase.
In the event that Client is allocated a certain number of hours for specific services, and in the event that Client does not use such services in a given month, the unused minutes shall not roll over to the following month as well.
Client shall be responsible for providing Consultant with all materials and other requested information within two (2) weeks of Consultant’s request, and in the event that Client delays in providing materials and other requested information to Consultant within the required time frame, it shall be considered a delay under Section 7 of the Agreement and Client may be required to pay additional fees.
This Scope of Work is subject to the terms and conditions above.
(Digital signature reflects approval of both the MARKETING SERVICES CONTRACT and the SCOPE OF WORK addendum or submitted quote).