We strive to be completely transparent with our customers. Listed below you will find our up-to date Master Service Agreement (MSA) and Terms of Service (TOS). This agreement represents the complete agreement and understanding between The Social Brand and its clients and supersedes any other written or oral agreement.
MASTER SERVICES Agreement
This MASTER SERVICES AGREEMENT (this “Agreement”) is made and entered into as of
the date of execution of the Proposal of Services (the “Effective Date”) between The Social Brand, LLC, a Tennessee limited liability company (“The Social Brand”) and the person or entity engaging The Social Brand for services (“Client”) (each a “Party”, together the “Parties”). The Client is engaging The Social Brand as an independent contractor for the specific purpose of marketing, branding and/or hosting Client’s website (the "Service"). This Agreement and the Proposal of Services executed by the Client (the “Proposal”), as well as the other documents incorporated by reference in this Agreement, comprise the entire agreement between the Client and The Social Brand, and supersede all prior or contemporaneous understanding, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement includes any referenced hyperlinks, exhibits, and or documents, all of which in their entirety are incorporated into this Agreement. This Agreement contains provisions that may or may not be applicable depending on the Proposal and Services, specifically Sections 12 (Web Design), 13 (Website Hosting), 14 (Search Engine Optimization), 15 (Social Media Management), and 16 (Online Advertising).
Agreement
In consideration of the foregoing and the mutual agreements and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
Services
1. Proposal. Before beginning any project for Services (“Project”), the Parties will determine and agree upon the specific services, deliverables, Fees, payment milestones, and any other information needed for the Project by The Social Brand sending estimate(s) and or invoice(s) to Client, the collection of which estimates and invoices shall constitute as the “Proposal”.
2. Acceptance, Part of Agreement. Any Proposal shall be considered as having been mutually approved by both Parties if Client approves in writing, or Client makes payment on, and or The Social Brand starts performing Services on, the Proposal. As such, an accepted Proposal will be annexed to this Agreement and will be a part of this Agreement.
3. Change Orders. Should The Social Brand need to alter any applicable Proposal, The Social Brand will submit a change order specifying the additional service fees (“Change Orders”) to Client, and Client shall review and then approve or reject. Should Client approve the change, then The Social Brand shall proceed as changed and Client shall not unreasonably withhold payment of any Change Orders. The Social Brand may add additional fees as it deems necessary, with proper notice to Client, in order to procure additional resources required for the Change Order.
4. Fees. Each Proposal will specify any and all fees (each and the aggregate as “Fees”).
5. Expenses. Expenses will be included in each Proposal as a part of Fees.
6. Payment of Fees. For Services rendered under this Agreement, the Client will pay all Fees and will remit payment to The Social Brand according to the terms or milestones set forth in the payment schedule communicated by email, or otherwise approximately monthly. Any payment of Fees or other monies by Client to The Social Brand are non-refundable.
7. Invoicing; Outstanding Balances. Any Fees unpaid are subject to a finance charge of ten percent (10%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection (“Finance Charges”). Finance Charges shall continue to accrue even after termination of this Agreement.
8. Hourly Rate. As applicable, The Social Brand’s hourly rate is as specified in writing by The Social Brand.
9. Effect of Termination. The Social Brand may be still performing Services to Client up to the effective date of termination of this Agreement. As such and up to the effective date of termination, The Social Brand may continue submitting invoices to Client for payment on Services, and Client shall not unreasonably withhold payment to The Social Brand.
Term; Termination
1. Term. The “Term” of this Agreement shall commence on the Effective Date and continue until its termination specified in this Section 2.
2. Termination for Any Reason. Any Party may terminate this Agreement upon fourteen (14) days’ written notice, prior to the expected billing date, to the other Party, for any or no reason.
3. Termination for Breach by The Social Brand. Client may terminate this Agreement upon immediate written notice to The Social Brand, should The Social Brand materially breach this Agreement, which breach is not cured within thirty (30) days after written notice specifying the breach from Client.
4. Termination for Breach by Client. The Social Brand may terminate this Agreement upon immediate written notice to Client, should Client materially breach this Agreement, which breach is not cured within thirty (30) days after written notice specifying the breach from The Social Brand.
Proprietary Information; Intellectual Property
1. Protection of Information. At all times during the term of this Agreement and thereafter, a Party (the “Receiving Party”) may learn, obtain, or come into possession of secrets or confidential information of the other Party (the “Disclosing Party”). The Receiving Party agrees to hold in strict confidence, and not to use, except for the benefit of the Disclosing Party to the extent necessary to perform its duties and obligations to the Disclosing Party strictly under this Agreement (and not to disclose to any person, firm, corporation or other entity, without written authorization from the Disclosing Party in each instance) any Proprietary Information (as defined in Section 3(b) below) that the Receiving Party obtains, accesses or creates during the term of this Agreement, whether or not during working hours, until such Proprietary Information becomes publicly and widely known and made generally available through no wrongful act of the Receiving Party or of others who were under confidentiality obligations as to the item or items involved. The Receiving Party further agrees not to make copies of such Proprietary Information except as authorized by the Disclosing Party.
2. Proprietary Information. For the purposes of this Agreement, “Proprietary Information” means information and physical material not generally known or available outside the Disclosing Party, discoveries and or inventions whether patentable or not patentable, and information and physical material entrusted to the Disclosing Party in confidence by third parties. Proprietary Information includes, without limitation: technical data, trade secrets, know-how, research, product or service ideas or plans, software codes and designs, developments, inventions, processes, formulas, techniques, mask works; lists of, or information relating to, employees and consultants of the Disclosing Party (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees and consultants); and lists of, or information relating to, clients, vendors, and customers of the Disclosing Party.
3. Ownership; No License. Each Disclosing Party owns all rights with respect to any of its Proprietary Information. The Receiving Party does not, and shall not, have any right, title, or interest, express or implied, by license or otherwise, to the Disclosing Party’s Proprietary Information or to any invention, discovery or derivative work arising out of or based on the Disclosing Party’s Proprietary Information that is made, conceived or acquired prior to or after the Effective Date. The Receiving Party shall not modify, reverse engineer, decompile or disassemble any of the Disclosing Party’s Proprietary Information or any sample or other tangible item disclosed under this Agreement unless approved in advance by the Disclosing Party in writing.
Non-Solicitation, Non-Disparagement
1. Affiliates, Business Contacts. For the purposes of this Agreement, “Affiliates” shall mean The Social Brand’s affiliates, subsidiaries, directors, investors, advisors, officers, agents, members, partners, shareholders, customers, clients, vendors, employees, and or contractors, and “Business Contacts” shall mean past, existing, or prospective (that is known to The Social Brand) clients, customers, agencies, suppliers, licensees, licensors to, or any other business relationships of, The Social Brand and Affiliates.
2. Non-Disparagement. During the Term and thereafter, the Parties agree that each shall not disparage, criticize, or defame each other, either publicly or privately. The foregoing sentence shall not apply to any statements made in the course of presenting evidence or sworn testimony required in any judicial or arbitral proceedings, or by any government agency.
3. Non-Solicitation. During the Term and thereafter for a period of two (2) years, Client understands and agrees not to directly or indirectly engage in the following without the informed and prior written consent of The Social Brand: soliciting for employment, employing, hiring, or otherwise engaging in the services of any The Social Brand member; inducing any The Social Brand member to leave their employ; inducing or attempting to induce any Business Contact or Affiliate to cease doing business, or from entering into doing business, with The Social Brand; or otherwise interfering with any Affiliate or Business Contact relationship with The Social Brand.
4. Reasonableness. Client acknowledges and agrees that these covenants made in this Section 4(d) of this Agreement are fair, reasonable, and are necessary for The Social Brand to protect its legitimate business interests including but not limited to, retaining customers and its ability to procure prospective customers and safeguarding its confidential and or proprietary information and or trade secrets.
5. Reformation. If determined by a court of competent jurisdiction in any state or other jurisdiction that any restriction in this Section 4 of this Agreement is excessive in duration or scope or is unreasonable or unenforceable under applicable laws of that state or jurisdiction, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the law of that state or jurisdiction.
Content Creation
Intellectual Property.
1. Client represents, warrants, and covenants to The Social Brand that the materials provided by the Client to The Social Brand for use as permitted by this Agreement (for example, any text, graphics, photos, designs, trademarks or other artwork) and the intellectual property rights therein, does not infringe or violate and will not infringe or violate the publicity and privacy rights or any intellectual property rights of any third party.
2. Subject to and in accordance with the terms and conditions of this Agreement, Client hereby grants The Social Brand a limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable, world-wide license during the term of this Agreement to use Client’s intellectual property solely to the extent necessary to provide Services to Client.
3. Except as set forth below, Client is, and shall be, the sole and exclusive owner of all right, title, and interest in and to all documents and other materials that are delivered to Client pursuant to this Agreement by or on the behalf of The Social Brand. The Social Brand acknowledges that such materials may qualify as “work made for hire” under 17 U.S.C. § 101, and Client shall own the copyrights in such materials as a “work made for hire”. The Social Brand irrevocably assigns to Client, without additional consideration, all right, title, and interest in and to such materials. The Social Brand may use pre-existing materials consisting of documents and materials of The Social Brand, data, know-how, methodology, software, and other materials, in each case developed or acquired by The Social Brand prior to the commencement of this Agreement. The Social Brand and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in such pre-existing materials, including all intellectual property rights therein. The Social Brand hereby grants Client a perpetual, limited, royalty-free, non-transferable, non-sublicensable, worldwide license to use, perform, display, reproduce, distribute, and transmit such pre-existing materials to the extent they are incorporated in or otherwise necessary to use the documents or materials delivered to Client. All other rights in and to such pre-existing materials are expressly reserved by The Social Brand. When The Social Brand utilizes images or other content that are licensed for use by a third party, that party retains ownership of the content in question according to the terms of their own license agreements.
- Copyrighting. Unless specifically notated, copyrighting is not provided. Copywriting services are at The Social Brand’s hourly rate (see Section 1(h), “Hourly Rate”).
Domain Registration
1. Authorization. Client authorizes The Social Brand to transfer any of Client’s existing domain names at Client’s request.
2. Responsibility. Client acknowledges that domain registration, payment, and maintenance is solely the Client's responsibility and will hold harmless The Social Brand in the event that domain registration or payment fails, even in the event that domain issues cause lost business, loss of ownership or for their website to be offline.
3. Hover. The Social Brand's domain registrar of choice is Hover. You can explore their services at https://www.hover.com.
Updates and Maintenance
1. Authorization. Client authorizes The Social Brand to make changes to Client’s website on behalf of Client.
2. Applicability, Time. Client agrees that the website must be hosted with The Social Brand to receive maintenance and updates. Client understands that monthly updates are only included in The Social Brand care plans and are limited to the time included in the designated care plan. Development of code, changes to the overall structure of the website, and graphics creation and manipulation are not included in the care plans. Client agrees that any included time in the care plan will be deducted in fifteen (15) minute increments. Client understands that included time does not accumulate or “roll over” to the following month and will be forfeited if it is not utilized before the care plan renews.
3. Additional Maintenance. Client agrees that any additional maintenance requested by the Client in writing but not included in a care plan shall be billed at The Social Brand’s hourly rate (see Section 1(h), “Hourly Rate”).
Expectations and Feedback
The Social Brand will attempt to market Client’s website in a way that meets Client’s expectations. However, The Social Brand does not guarantee expectations will be met if requests are unreasonable or are unable to be completed within the scope of this Agreement. Client also understands that failure to provide timely and reasonable feedback to The Social Brand may delay or frustrate completion of work. The Social Brand is not responsible for additional fees, time, or expenses incurred because of delays caused by lack of reasonable feedback, including Client’s failure to initiate the process.
Backups
Client agrees to make routine backups of the website and other crucial data on the server. In no event shall The Social Brand be liable to Client or any third-party for any damages, including any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate the website, even if The Social Brand has been advised of the possibility of such damages. At no time will Client or The Social Brand incur any costs from the other due to performance issues of the website or the marketing services being provided. Client agrees that The Social Brand is not responsible for the marketability or sales performance of Client’s website, or electronic commerce success or failure.
Third-Party Software
Client understands that any optional third-party software, including but not limited to call tracking, screen recording, and review management software that Client wishes to use may in some cases be billed directly by the third-party software vendor. Third-party software may also have additional fees based on usage, and separate terms and conditions that Client agrees to. Client also understands that The Social Brand has no control over third-party software.
General Provisions
1. Entire Agreement. This Agreement contains the entire agreement between the Parties on the matters that are the subject of this Agreement, and is binding on the heirs, executors, administrators and other legal representatives, and its successors and assigns, of each Party. This Agreement supersedes all prior contracts, agreements, and understandings between the Parties.
2. Modification; No Waiver. This Agreement may not be amended or waived except by a writing signed by Client, and by an authorized signing authority of The Social Brand. Failure to exercise any right by a Party under this Agreement will not constitute a waiver of such right. Any waiver of any breach of this Agreement will not operate as a waiver of any other breaches. All rights or remedies will be cumulative and in addition to all other rights and remedies available under applicable law.
3. Limitation of Liability. Under no circumstances will either Party be liable for any lost profits, lost savings, lost revenues, loss of use or downtime, lost data, or for any indirect, incidental, unforeseen, special, punitive, or consequential damages, whether based on contract, tort (including negligence), strict liability, or any other theory or form of action, even if a Party has been advised of the possibility of such potential loss or damage.
4. Relationship; Standard of Performance. The Parties are independent contractors and separate legal entities. The relationship between the Parties is reflected in this Agreement, and neither Party, nor any representative of either, is to be considered an independent contractor, servant, agent, or representative of the other Party. None of the provisions of this Agreement is intended to create or to be construed as creating any agency, partnership, joint venture, or employer-contractor relationship between or among the Parties or any contractor, servant, agent, or representative of either. Both Parties shall perform on this Agreement in a professional and workman-like manner, consistent with industry standards for the industry and business of each Party. The Social Brand is free to engage with other entities or persons for similar or identical services. Client may contract services similar to those performed by The Social Brand from any other business or individual other than The Social Brand, but shall not do so with relation to the subject matter contained in this Agreement and thereby, in any Proposal for so long as this Agreement is in effect. The Social Brand may use Client’s name, trademarks, service marks or logos in any advertising, promotional materials, press releases, or other publicity without obtaining the prior written approval of Client.
5. Governing Law; Jurisdiction. This Agreement is to be interpreted, construed and governed according to the laws of the State of Tennessee, without regard to its principles regarding conflicts of law. The Parties agree and consent to exclusive jurisdiction and venue in a court of competent jurisdiction in and for Washington County, Tennessee for all lawsuits relating to this Agreement, and the Parties: agree not to bring any action or proceeding arising out of or relating to this Agreement in any other court; waive any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of any other party with respect thereto; and agree to a final judgment in any action or proceeding so brought is conclusive and may be enforced by suit on the judgment or in any other manner provided by law or in equity.
6. Notices. All notices, consents, requests, waivers and other communications required or permitted under the Agreement shall be in writing, shall be in the English language, and shall be deemed to have been made (i) upon actual receipt, when given by hand or electronic transmission (in the case of physical delivery, (ii) two (2) business days after delivery to the carrier, when given by overnight delivery service or (iii) five (5) days after mailing, when given by international first-class registered or certified airmail, postage prepaid, return receipt requested).
7. Remedies
1. In General. Without limiting the provisions of this Section Error! Reference source not found., if any non-breaching Party brings any dispute or difference from or relating to this Agreement or the breach, termination, or validity of it, and is successful on the merits or otherwise, the non-breaching Party will be entitled to recover from the breaching Party all reasonable attorneys’ fees incurred, together with any other expenses, costs, and disbursements that may be allowed by law.
2. In Equity. With respect to Sections 3 and 4 of this Agreement, both Parties acknowledge and agree that violation of this Agreement may cause irreparable harm to the non-breaching Party not compensable in money damages alone. Accordingly, the non-breaching Party will be entitled to seek injunctive relief, temporary restraining orders, preliminary and or permanent injunctions, or other appropriate equitable remedies from a court of competent jurisdiction to specifically enforce the terms of this Agreement, without the necessity of showing actual damages or furnishing a bond or other security. This right is in addition to and without prejudice to any other rights or remedies that the non-breaching Party may have pursuant to this Agreement or in law or equity.
8. Survival. Any obligations contained in Sections 3 and 4 of this Agreement, in addition to any obligations in this Agreement which by nature should survive termination of this Agreement, shall survive the termination of this Agreement and shall be fully enforceable thereafter.
9. Authority; Voluntary Execution. Undersigned represents and warrants that it has the full power and authority to execute, deliver and perform this Agreement and such other instruments as required in this Agreement. Each Party acknowledges that, in executing this Agreement, Party has had the opportunity to seek the advice of independent legal counsel, and Party has read and understood all of the terms and provisions of this Agreement.
10. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the Parties agree to renegotiate the affected provision in good faith. If the Parties cannot reach a mutually agreeable and enforceable replacement for that provision, then the provision will be excluded from this Agreement, the balance of the Agreement will be interpreted as if the affected provision were so excluded, and the balance of the Agreement will be enforceable in accordance with its terms, to the maximum extent permitted by applicable law.
11. Force Majeure. Any Party shall not be liable or responsible to the other Party, nor be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of The Social Brand, including Acts of God, fire, floods, war, sabotage, pandemic, accidents, labor disputes or shortage, governmental laws, ordinances, rules and regulations whether valid or invalid, inability to obtain material, equipment or transportation, or any other event that makes the performance commercially impractical.
12. Applicable Laws. Each Party represents and warrants that it will comply with the laws and regulations applicable to such Party in its performance of obligations under this Agreement.
13. Assignment. This Agreement may not be assigned by either Party without the express written consent of the other Party; but a successor in interest by merger, by operation of law, assignment, purchase or otherwise of the entire business of either Party will acquire all rights and obligations of the acquired Party under this Agreement.
14. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and assigns, and nothing herein express or implied is intended to, or shall, confer on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15. Construction; Headings. The Parties agree this Agreement must be construed as a whole, according to its fair meaning, and not in favor of or against any party. Sections and section headings contained in this Agreement are for reference purposes only, and do not affect the meaning or interpretation of this Agreement. Whenever the context requires, references to the singular include the plural and references to the plural include the singular. This Agreement shall not be construed against either Party by reason of the drafting or preparation hereof.
16. Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts in the English language; each counterpart is an original of this Agreement, and all counterparts constitute a single instrument. Facsimile or PDF copies of signatures will be treated as original signatures for all purposes. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., betterproposals.io, www.docusign.com, www.hellosign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. In case of any conflict between the English version and any translated version of this Agreement, the English version will govern.
Web Design
1. Application. The terms and conditions of this Section 11 shall apply if the Proposal and/or Services include website design. The Social Brand shall develop and/or modify the Client’s website to help generate greater brand engagement and in accordance with the Proposal. If additional website design services are requested, the Parties may enter into a separate Proposal of Services for such work. Notwithstanding the foregoing, the terms of and Proposal entered into between the Parties shall be in addition and supplemental to the terms of this Agreement. If there is a conflict between the Agreement and any Proposal, the terms of this Agreement shall be binding and control.
2. Time. In general, the basic website packages take about 6-8 weeks, customized website packages take about 8-10 weeks, and rebranding packages take about 10-12 weeks. This is a rough estimate and depends on a number of factors. Including the complexity of the Project, Client’s feedback, The Social Brand’s current workload, material availability, and programming issues that may arise. The Social Brand maintains an active queue of work and does not place projects in that queue until an initial payment has been received. The Social Brand will not begin a Project until it reaches the front of the queue. Projects may stall if The Social Brand awaits materials, feedback, or approvals from Client. If a Project is put on hold for over thirty (30) days, there will be a restart charge of $599 or 5% of the Fees, whichever is higher. Such restart charge must be paid in full by Client to The Social Brand before work on the Project resumes.
3. Payment Processors. The pricing provided in the Proposal is based on the Client utilizing one of The Social Brand’s preferred payment processors, Stripe and Paypal, for eCommerce websites. The Social Brand will work to accommodate Client’s needs for other payment processors, but utilizing other payment processors will result in additional fees for the plugins required to integrate and the additional time for research, testing, and integration. If a different payment processor is chosen, The Social Brand is responsible only for initial integration and, after the first successful test transaction, additional issues are not included in the Services unless specifically notated in the Proposal. Maintenance of payment processor integration is billed at The Social Brand’s hourly rate (see Section 1(h), “Hourly Rate”).
4. Feedback. Client is required to provide feedback on each piece of content before it is utilized in the final deliverable.
5. Testing. Client’s website will be designed for viewing on modern screens and tested for compatibility in the following browsers: Microsoft Internet Explorer, Mozilla Firefox, Safari, and Google Chrome. The website is tested on Windows and Mac operating systems. Unless specifically requested in writing by the Client, The Social Brand does not code for web browsers or operating systems older than the current release of for those in beta testing at the time the project has begun. Requests for such work shall incur additional charges.
6. Changes After Launch. Unless stated otherwise in the Proposal, the Project as it pertains to Web Design concludes once the website is launched. Any changes or modifications that were not included in the Proposal, other than fixing Existing Bugs, will incur The Social Brand’s hourly rate for completion (see Section 1(h), “Hourly Rate”). An “Existing Bug” means an error in the programming provided by The Social Brand that existed prior to launch of the website and affects the operation or appearance of the website. Additional hourly fees will be incurred for support requests including, but not limited to:
1. Client’s website has issues after an upgrade to WordPress of any plugins or software Client is using.
2. Client adds code or plugin to the website that breaks functionality of the website.
3. Client needs assistance adding new plugins or features to the website that were not included in the Proposal.
4. A new version of a web browser has issues displaying the website properly.
5. Client makes changes or alterations to any part of the website.
6. Client’s website is hacked or compromised and/or Client loses files or data.
7. Third Party Images. If Client provides The Social Brand with images or photography for use on Client’s website, securing the appropriate license to use them is Client’s sole responsibility. Client assumes the full risk of liability for the use of those images or photographs. Client agrees not to include any images on Client’s website without first securing approval from the copyright holder for the image or determining that the image is in the public domain. The cost for licensing stock photography is not included in the Proposal (unless specifically noted otherwise) and is billable on the final project invoice. The Social Brand will seek Client’s approval before purchasing any stock photography.
8. Legal Pages. Depending on the nature of Client’s website and/or Client’s location, legal pages such as terms of use and policy pages such as privacy policy may be required for Client’s website by government entities, vendors, licensing agencies, and/or applicable laws and regulations. It is the sole responsibility of Client to determine whether such pages are required, and the creation of such pages is not included in the Project unless specifically itemized in the Proposal. Client should consult with an attorney to determine Client’s responsibilities relating to legal pages on the website.
9. Web Design Intellectual Property. Notwithstanding and subject to Section 5:
1. Client’s website will be built using the WordPress content management system (CMS). WordPress and its associated software are "open source," distributed under the GNU General Public License. The Social Brand uses WordPress to power Client’s website, but neither of Party "owns" WordPress or the third-party plugins used to add features to Client’s website. The website design The Social Brand creates for Client is licensed by The Social Brand to Client for one domain only (i.e. “www.yourname.com”). It may not be redistributed, resold, or modified for another domain in any way. If Client would like to use Client’s website or theme on additional domain(s), Client may let The Social Brand know and The Social Brand will provide a quote for additional licensing.
2. When The Social Brand utilizes images or other content that are licensed for use on Client’s website by a third party, that party retains ownership of the content in question according to the terms of their own license agreements.
3. During the process of creating Client’s website, The Social Brand will create various types of code, functionality, and processes. While this work is used on Client’s website, The Social Brand retains ownership of these as its own intellectual property and reserves the right to use them on future websites. The Social Brand also reserves the right to use any part of any theme The Social Brand develops for use in future projects.
4. Many plugins used by The Social Brand on the website are free; however, The Social Brand often uses WordPress plugins that require an annual licensing fee for ongoing support and updates.
10. Security. The Social Brand employs basic WordPress security techniques when building Client’s website. Client agrees to protect any computer that will log into the website by: installing and maintaining updated security software, using the most up-to-date version of Client’s preferred web browser, keeping the operating system patched with recommended updates, and keeping versions of Flash and Java up to date if they are installed.
11. Disclaimer of Warranty. THE SOCIAL BRAND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT SERVER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL. THE SOCIAL BRAND HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
12. Website Hosting. If Client elects not to host on The Social Brand’s server, The Social Brand cannot be responsible for the speed of Client’s website, the performance of any of Client’s website features, or the uptime of Client’s site. Fixing any problems related to web hosting will be considered billable at The Social Brand’s hourly rate (see Section 1(h), “Hourly Rate”).
13. Domain Names. Registering a domain name for Client’s website and paying the fee for it annually is Client’s responsibility. Client can purchase Client’s domain name for multiple years, or renew it annually at Client’s discretion. The Social Brand is not responsible for suspension or loss of domain names because Client’s credit card could not be billed. Any time spent reestablishing Client’s website after a domain expires is billable at The Social Brand’s hourly rate (see Section 1(h), “Hourly Rate”).
14. Marketing and Attribution. The Social Brand reserves the right to use the Project as an example in The Social Brand’s promotional material and case studies. At the end of the Project, The Social Brand may ask Client for a quote or testimonial video describing Client’s experience. The Social Brand may also ask Client to be a reference should any future clients desire to speak with people it has worked with in the past. The Social Brand will place a small text link (called an attribution link) in the footer of Client’s website with a statement such as "Designed by The Social Brand" and links back to The Social Brand’s homepage.
Website Hosting
1. Authorization. Client authorizes The Social Brand to transfer Client’s web hosting service to The Social Brand’s servers. All hosting options can be found at https://www.thesocialbrandtn.com/care-plans/.
2. No Guarantees. Client agrees that The Social Brand makes no guarantees that the website will function properly with any other web hosting provider other than The Social Brand.
3. Web Hosting Terms of Service. If the Proposal and/or Services include web hosting, Client agrees to this Section 13(c):
1. Client agrees to be bound by any changes The Social Brand may reasonably make to this Section 13(c).
2. Client shall bear full risk of loss and damage to Client’s server and all of Client’s server content. Client is responsible for maintaining confidentiality of password and account information. Client acknowledges and agrees that Client is solely responsible for all acts, omissions and use under Client’s account or password or in connection with the server or any of Client’s server content displayed, linked, and/or transmitted through or stored on the server. Client is solely responsible for taking measures to: prevent any loss or damage to Client’s server content; maintain independent archival and backup copies of Client’s server content; ensure security, confidentiality, and integrity of Client’s server content transmitted through or stored on the servers; and ensure the confidentiality of Client’s password. The Services are not intended to be used for data backup or archiving. The Social Brand reserves the right to delete Client’s archives if they affect The Social Brand’s overall server performance and The Social Brand shall have no liability to Client or any other person for loss, damage, or destruction of any of Client’s content.
Acceptable Use. Client agrees to maintain Client’s website in full compliance with the terms and conditions set forth below. By using the Services, Client agrees:
1. Not to violate any applicable federal, state, or local laws, regulations, or similar requirement.
2. Not to transmit any unsolicited commercial or bulk email (or otherwise engage in any activity known or considered to be “spamming”).
3. Not to make any illegal communications.
4. Not to make, attempt, or allow any unauthorized access to the website, servers, or accounts.
5. Not to allow any remote code execution of malicious software.
6. Not to cause denial of service attacks, port scans or other endangering and invasive procedures against the servers or facilities.
7. Not to use the Services to host any website, other content, links, or advertisements for websites that: infringe any copyright, trademark, patent, trade secret, proprietary rights, or other intellectual property of any third party; contain nudity, pornography or other content deemed adult related; profess hatred for particular social, ethnic, religious or other group; contain viruses, trojan horses, worms, time bombs, corrupted files, or any other similar software or programs that may damage the operation of a computer or property; contain warez; contain any kind of proxy server or other traffic relaying programs; promote money making schemes , multi-level marketing or similar activities; contain torrent trackers or similar software; contain violence or encourage violence.
8. Not to upload unacceptable material including: IRC bots; warez; image, file-storage, mirror or banner-ad services, topsites; investment sites; bitcoin miners; sale of controlled substances without providing proof of appropriate permits to The Social Brand in advance; AutoSurf sites; sites promoting illegal activity; IP scanners; Brute Force Programs; Mail Bombers; and Spam Scripts.
9. Not to engage in or to promote actions that cause harm to The Social Brand or The Social Brand’s clients, customers, and/or users.
10. The Social Brand reserves the right to refuse service to anyone in The Social Brand’s sole discretion. Any material that in The Social Brand’s judgment is obscene is strictly prohibited and will be removed immediately with or without prior notice and may lead to suspension or termination with no refund of Fees paid. Client agrees that The Social Brand has the sole right to decide what constitutes a violation of this Section 13(c)(iii). In the event a violation by the Client of this Section 13(c)(iii) is found, The Social Brand will take correction action in its sole discretion and notify the Client. Such decision is binding and final. The Social Brand cannot and shall not be liable for any loss or damage arising from such decision. Any backups will be permanently deleted upon termination and no refund will be due.
2. Availability. The Social Brand uses commercially reasonable efforts to make sites that it hosts available 99.9% of the time during each monthly billing cycle. If The Social Brand is unable to meet this service level, Client will be eligible to receive a credit to apply to future billing cycles based upon the unavailability for that month. For the purposes of this Agreement, “unavailability” means that either Client’s website is unresponsive, or Client’s website returns a server error response to valid user requests for more than 60 seconds of consecutive requests. Unavailability that is a result of scheduled maintenance is excluded from these conditions and will not be considered for service credit calculations. Scheduled maintenance is defined as maintenance that is announced at least two (2) days in advance and does not exceed one (1) hour in any month. Service credits will be calculated as a percentage of the bill for the billing cycle that the unavailability occurred. The percentage for the credit will be calculated by dividing the number of minutes of unavailability by the total number of minutes in that billing cycle. The customer must request service credits within seven (7) days of the unavailability occurring.
Search Engine Optimization
1. Search Engine Policies. Client agrees that The Social Brand has no control over the policies of search engines or online directories.
2. No Guarantees. Client agrees that The Social Brand makes no guarantees as to the performance or effectiveness of any search engine optimization whatsoever. The Social Brand will submit Client’s website to Google and Bing on behalf of Client; however, Client acknowledges that approval of Client’s website is at the sole discretion of the individual search engines. Client agrees that The Social Brand makes no guarantees as to the performance or effectiveness of any local search optimization efforts whatsoever. Client acknowledges that approvals of Client’s business listings are at the sole discretion of the individual websites and may be terminated at any time with or without cause or explanation. Client understands that due to the competitiveness of some keyword phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, The Social Brand does not guarantee specific positions for any particular keyword, phrase, or search term.
3. Authorization. Client authorizes The Social Brand to publish Client’s business information to online directories and local listing websites.
4. SEO Agreement. If the Proposal and/or Services includes SEO, Client agrees to this Section 14(d):
1. The Social Brand will provide SEO services in accordance with the Proposal. Such services may include: research keywords and phrases to select appropriate and relevant search terms; submitting Client’s pages to search engines and directories as set forth in the Proposal and this Agreement; modify titles tags, meta tags, HTML code, URLs, and other on-page factors; and creating positioning reports.
2. Client agrees to: provide The Social Brand with access to its website for uploading new pages and making changes for the purpose of SEO or approval to go through a third party; to authorize The Social Brand use of all logos, trademarks, website images, and similar materials for use as deemed necessary for search engine positioning and optimization; and, if necessary, to provide additional relevant text content in electronic format for the purpose of creating new pages and/or SEO.
3. Client acknowledges that: some search engines may take as long as four (4) months, and occasionally longer, after submission to list websites; occasionally search engines and directories will stop accepting submissions for an indefinite period of time; and occasionally search engines and directories will drop listings for no apparent or predictable reason.
4. The Social Brand is not responsible for changes made to Client’s website(s) by other parties that adversely affect the search engine or directory rankings of Client’s website(s).
THE SOCIAL BRAND DOES NOT WARRANT THAT THE SERVICES WILL MEET THE CLIENT’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CLIENT. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, THE SOCIAL BRAND PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
Social Media
1. Authorization. Client authorizes The Social Brand to post updates to Client’s social media accounts on behalf of Client.
2. No Guarantees. Client agrees that The Social Brand makes no guarantees as to the performance or effectiveness of any social media efforts whatsoever. Client acknowledges that approval of updates posted to Client’s social media accounts is at the sole discretion of the individual social media networks.
3. Social Media Agreement. If the Proposal and/or Services include social media management, Client agrees to this Section 15(c):
1. Client understands they have full access to analytics, content, upcoming content and more upon written request.
2. The Social Brand will establish the Client’s presence through the platforms and channels outlined in the Proposal. Additional platforms or channels will require a Change Order or additional Proposal of Services.
3. Client authorizes The Social Brand to assume the identity of Client in all social media interactions on the internet including, but not limited to, status updates, blog posts, online forum discussions and message board posts, comments, and responses to user comments, direct messages, and emails.
4. The Social Brand will hold the Client’s URLs, usernames, and passwords in confidence.
5. The Parties will meet at the beginning of each thirty (30) day period (in person, by phone, or online) to discuss the campaign’s progress and strategy for the upcoming period. If Client has failed to schedule a meeting by the 10th of each month, this will be considered opting out of the campaign meeting.
6. The Social Brand may elect to provide additional services when deemed necessary for no additional cost to Client. The performance of additional services in one or more periods does not obligate The Social Brand to provide such additional services in any future periods.
7. Establishing a digital media presence and initiating a two-way flow of communication between the Client and the public can have unintended consequences on the Client's reputation. Should this occur, the Client waives its right to hold The Social Brand responsible for any damage and/or liability that may arise from The Social Brand’s actions on behalf of the Client, provided The Social Brand is not grossly negligent. The Social Brand will submit upcoming content to Client for approval. If any changes are requested, The Social Brand shall resubmit the content for approval. After three (3) business days with no response, the content is assumed approved. If, at any time, the Client does not agree with actions taken by The Social Brand on its behalf, it must notify The Social Brand in writing.
8. Every month, Client will attempt to schedule a photoshoot for the following month's content. If Client’s appointment for the photoshoot has not been set by the 15th of each month, this will be considered opting out of the included photo session. At this point, rather than receiving a photoshoot Client will be provided with twelve (12) licensed stock photos. There will be no discounts or refunds offered for unused photoshoots - they also do not roll over, if unused. It is the Client's responsibility to contact The Social Brand to schedule their monthly photo shoot. An occasional need for rescheduling will arise and The Social Brand will do its best to accommodate this. However, more than one reschedule request in any given month will result in a $50 rescheduling fee. The rescheduling fee will be automatically added to the following month's bill.
9. If Services are paused, The Social Brand's staff will stay on Client’s accounts as admins for up to thirty (30) days. However, if your paused services go beyond thirty (30) days, Client will be automatically offboarded by The Social Brand's staff. Client will receive an email giving notice of this.
Online Advertising
1. Authorization. Client authorizes The Social Brand to create, modify, or delete ads on behalf of Client on advertising networks, with or without Client’s approval, including, but not limited to, search engines and social media networks.
2. No Guarantees. Client agrees that The Social Brand makes no guarantees as to the performance or effectiveness of any online advertising whatsoever. The Social Brand will submit Client’s ads to advertising networks on behalf of Client, however, Client acknowledges that approval of Client’s ads is at the sole discretion of the individual advertising networks.
Online Advertising Services Agreement. If the Proposal and/or Services include online advertising, Client agrees to this Section 16(c):
1. Client agrees to pay all AdSpend charges directly to the platform (Google, Bing, Facebook, etc.).
2. The Social Brand and any relevant contractors of The Social Brand will hold all necessary and required licensing to provide online advertising services to industry best practices.
3. The Social Brand will provide the Services in a professional manner and done according to best practices at all times.
4. The Social Brand is authorized by Client to assume the identity of Client in all online interactions on the internet including, but not limited to, posting online advertisements, responding to leads and any other necessary interaction.
5. In the event that Client chooses to not engage with The Social Brand for ongoing online advertising services, Client will have rights to the online advertising campaigns and will be responsible to accept access to all accounts within 30 days. If Client or a representative of Client does not accept access to the account, Client will not have access. After thirty (30) days of an inactive account, The Social Brand has the right to delete the account if Client has not accepted access.
6. If Services are paused, The Social Brand's staff will stay on Client’s accounts as admins for up to thirty (30) days. However, if your paused services go beyond thirty (30) days, Client will be automatically offboarded by The Social Brand's staff. Client will receive an email giving notice of this.
7. In the event Client does not accept access within the thirty (30) days and Client’s account has not been deleted, if a representative of The Social Brand has to aid with transferring access, this will be billed at The Social Brand’s hourly rate (see Section 1(h), “Hourly Rate”).
8. Establishing a digital media presence and initiating a two-way flow of communication between the Client and the public can have unintended consequences on the Client's reputation. Should this occur, the Client waives its right to hold The Social Brand responsible for any damage and/or liability that may arise from The Social Brand’s actions on behalf of the Client, provided The Social Brand is not grossly negligent. If, at any time, the Client does not agree with actions taken by The Social Brand on its behalf, it must notify The Social Brand in writing.
