Marketing Services Agreement
[Important: This agreement governs the products and services you purchase from us, so you should read it.]
This Marketing Services Agreement (the “Agreement”) is automatically made and entered into by and between the purchaser of any product or service offered or specified on this website (you, the “Client”) and The 108 Group, LLC dba Social Media Ninjas & Dental Marketing Ninjas (“Agency”), collectively referred to as the “Parties,” at the time such product or service is requested by Client, regardless of the method of such request.
The Parties agree as follows:
1. SERVICES: Client shall engage Agency for the marketing and advertising services (“The Services”) described and requested elsewhere on this website and by electronic communications between the parties.
2. TERM OF SERVICES: Unless otherwise agreed to by the parties, The Services shall commence upon the original date of order by Client, for an initial minimum term depending on type of service being provided, as follows: 6 months for paid traffic/PPC campaigns on platforms such as Google Ads, Facebook Ads, Instagram Ads, LinkedIn Ads, etc., and an initial minimum term of 12 months for SEO, social media marketing & posting, reputation management, mobile marketing, and video marketing campaigns (“Initial Term”), and continuing month-to-month thereafter until the date terminated by either party (the “Term”).
a. Refund Policy. Any and all payments made by Client to Agency are governed by a strict no-refunds policy. The reasons for this include, but are not limited to the fact that Agency, at the time of contract engagement with Client, often immediately incurs service fulfillment-related expenses such as the purchase of various tools, services, time, and labor required in order to provide The Services to Client (collectively, “Fulfillment Expenses”). Agency frequently enter into no-refunds contracts with providers of these Fulfillment Expenses, meaning that any issuance of refunds would cause Agency unacceptable financial losses.
b. Credit Card Chargebacks. Client agrees that they may not, at any time and for any reason whatsoever, attempt a chargeback of any credit card payments made to Agency. In the case that Client attempts to chargeback a credit card payment made to Agency, Client understands and agrees that they will be liable for a penalty fee equal to 3 times the originally charges that were charged back, in addition to any and all expenses or losses incurred by Agency in its pursuit to defend and/or reverse the chargeback attempt, including but not limited to legal fees, time spent documenting and communicating about the matter with Client, banks, legal experts, etc.
c. Terms of Payment, Requirement for Valid Form of Payment On-File. Agency offers “Due Upon Receipt” Terms for all Client invoices with no grace period for accounts in arrears. Client agrees that they will maintain with Agency, at all times, a valid form of payment (e.g. credit card or bank information) that Client gives Agency permission to use for charges related to The Services. Such charges by Agency will be made in advance of services being rendered unless otherwise agreed between the parties in writing. Agency reserves the right to suspend or cancel The Services during any period where charges are owed or no valid form of payment for Client exists, until such time as a valid, chargeable form of payment has been provided by Client and verified by Agency as valid for the outstanding amount owed. Furthermore, Client agrees that Agency shall not be liable for any losses or damages of any kind whatsoever related to any downtime of services resulting from delayed payment of charges by Client, for any reason.
d. Penalty for Early Termination. Client understands that Agency incurs substantial fees and engages in substantial financial commitments when setting up marketing services for Client, expenses that are amortized via monthly services fees that are paid across the initial minimum commitment term of a campaign. Furthermore, to provide services to Client, Agency enters into long-term commitments with subcontractors and/or vendors to provide services over the minimum commitment period of the contract, and is therefore committed for that period. Additionally, Agency’s pricing to Client is based and contingent on Client satisfying the minimum contract period, and failure to do so will cause Agency financial harm/loss. Due to the above considerations, any early termination of contract by Client not mutually agreed upon ahead of time in writing by both Agency and Client, and/or failure by Client to pay timely for services shall result in an immediate early termination penalty equal to the remaining monthly services fees due under the agreement — regardless of whether Client permits Agency to provide such services, or Client facilitates Agency in the necessary logistics to provide such services to Client. For example, if Client has 6 months remaining in their marketing services agreement for which it is paying $1500/mo in management fees, and terminates wrongfully and early, Client shall owe the full remaining amount due to Agency of $1500 x 6 = $9000 and be billed for this amount immediately using the payment form on file. In the event that the payment form on file cannot be charged, Client will accrue an annual APR compounded interest rate of 18% (1.5% per month) for any amounts owed to Agency beginning in 7 days from the attempt to charge, and after 30 days from this date, Client will be referred to collections and/or legal proceedings to collect the debt. Client shall be solely responsible for any and all expenses incurred by Agency in attempting to collect this debt, in addition to any applicable interest charges.
4. INDEPENDENT CONTRACTOR: It is understood that Agency is an independent contractor and not an employee of Client.
5. ASSIGNMENT OF SPECIFIC RIGHTS: Client agrees to provide, timely, the following to Agency in order to facilitate Agency’s fulfillment of The Services:
a. FTP, website hosting control panel, domain registrar, e-commerce, and other back-end access to Client’s website and website-related tools and services.
b. Permission to communicate, on Client’s behalf, directly with any third parties related to or involved with Client’s online marketing (e.g., web designer, web developer, software developers or vendors, etc.).
c. Full access to existing website traffic analysis and statistics accounts and services related to Client’s digital and marketing assets (such as Google Analytics, etc.).
d. Permission to use Client’s official email address at client’s email domain for the purposes of tasks such as claiming business listings, requesting links, and other online-marketing related tasks as deemed necessary by Agency to fulfill The Services.
e. Client authorizes Agency’s use of all client’s logos, trademarks, Web site images, content etc., for use in providing the Services.
f. Any other reasonable access requested by Agency to Client’s online accounts, tools, or digital assets required for its fulfillment of The Services.
6. CONFIDENTIALITY: Agency acknowledges that it may have access to Client’s confidential and proprietary information. Such confidential information may include, without limitation: i) business and financial information, ii) business methods and practices, iii) technologies and technological strategies, iv) marketing strategies and v) other such information as Client may designate as confidential (“Confidential Information”). Agency agrees to not disclose to any other person (unless required by law) or use for personal gain any Confidential Information at any time during or after the term of this Agreement, unless Client grants express, written consent of such a disclosure. In addition, Agency will use its best efforts to prevent any such disclosure. Confidential information will not include information that is in the public domain.
7. OWNERSHIP OF ASSETS: Unless otherwise specified or agreed upon between the parties, Agency owns all digital assets it develops or generates in connection with The Services, including but not limited to: ad campaign-related assets, email lists on agency’s CRM system, Facebook custom audiences, PPC remarketing lists, website themes and theme customizations, website forms, imagery, ad copy, videos, proprietary website plugins, etc. Client shall retain any existing rights to its own assets that Agency utilizes in Client’s campaign (e.g., Client’s company logo, existing website content, etc.). No Services-related assets should be downloaded, copied, or otherwise duplicated by Client without Agency’s prior written consent. In the event that the Services are terminated for any reason, Client forfeits its usage of these digital assets immediately upon the Termination Date.
8. CONTINUING OBLIGATIONS: Notwithstanding the termination of this Agreement for any reason, the provisions of paragraph 5 and 6 of this Agreement will continue in full force and effect following any termination of this Agreement.
9. BINDING EFFECT: The covenants and conditions contained in this Agreement shall apply to and bind the Parties and the heirs, legal representatives, successors and permitted assigns of the Parties.
10. CUMULATIVE RIGHTS: The Parties’ rights under this Agreement are cumulative, and shall not be construed as exclusive of each other unless otherwise required by law.
11. WAIVER: The failure of either party to enforce any provisions of this Agreement shall not be deemed a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
12. SEVERABILITY: If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
13. TERMINATION: This Agreement may be terminated by either party in the event that the other party fails to perform its duties or materially breaches any obligation in this Agreement.
14. CANCELLATION: It is agreed that both the Client and Agency are entitled to cancel this agreement at any time after the expiration of the Initial Term without given reason therefore. However, such cancellation shall only become effective on the expiration of 90 (ninety) days from midnight of the day on which notice of the cancellation is issued via the Services Cancellation Form on this website (“Termination Date”). [See also Section 3(d) above regarding important information about non-mutual early termination by Client.]
To ensure that Agency has a clear understanding with regards to the technical details surrounding cancellation and the exact services being terminated and/or retained by Client in the event of cancellation of The Services, requests for cancellation of services by Client shall only be considered valid when issued by Client using the Service Cancellation Form found elsewhere on this website, at https://socialmedianinjas.com/forms/service-cancellation-form/ .
15. ASSIGNMENT: Either party shall have the right to assign or transfer any duties, rights or obligations due hereunder without the express written consent of the other party.
16. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. This Agreement may be modified in writing, and any such modifications must be signed by both Client and Agency.
a. Form of Notice. All notices and other communications between the parties must be executed in writing, including digital communications via website form submission or electronic mail.
b. Method of Notice. With the exception of notices related to the cancellation of services as specified in (14) above, the parties shall give all notices and communications between the parties by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party’s address specified in this agreement, or to the address that a party has notified to be that party’s address for the purposes of this section.
c. Receipt of Notice. A notice given under this Agreement will be effective on
i. the other party’s receipt of it,
ii. or if mailed, on the earlier of the other party’s receipt of it and the [fifth] Business Day after mailing it.
d. Agency’s address:
The 108 Group, LLC dba Social Media Ninjas
1275 4th St Ste 108
Santa Rosa, CA 95404
Email: ninjas [at] the108group [dot] com
Phone: (707) 206-6244
18. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of California and the County of Sonoma County.
NOTE: WE MAY MODIFY, UPDATE OR DELETE PROVISIONS OF THIS AGREEMENT OVER TIME BY POSTING CHANGES ON OUR WEBSITE ON THIS PAGE. CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT THEY ARE SOLELY RESPONSIBLE FOR PERIODICALLY REVIEWING AND REMAINING UP TO DATE WITH REGARDS TO THESE TERMS AND PROVISIONS, AND THAT THEY WILL REGULARLY CHECK FOR UPDATES TO THIS PAGE CONTAINING THESE TERMS AND CONDITIONS. FAILURE TO PROVIDE A WRITTEN NOTIFICATION OF DISPUTE AS TO THE NATURE OF ANY SUCH CHANGES WITHIN 14 (FOURTEEN) DAYS, AND/OR CONTINUED USE OF OUR MARKETING SERVICES AFTER ANY CHANGES, SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES TO THESE TERMS AND PROVISIONS.
Document Last Updated: August 24, 2020