Digital Marketing and/or Web Design & Development Agreement by and between Sprout Media Lab and Client
This Agreement is entered by and between Sprout Media Lab and Client (“Name specified in Payment Authorization”) (collectively the “Parties”). Client desires to engage Sprout Media Lab for the following purpose: Digital Marketing Services and/or Website Design & Development for Client’s business (URL specified in Payment Authorization) for a minimum period of twelve (12) months (“Initial Term”), unless otherwise noted on the Agreement, the first twelve months (12) months of which shall be a Required Period as set forth below. To carry out this purpose, the Parties hereby agree as follows:
I. CLIENT’S OBLIGATIONS:
1. Support to be performed by Client: Client agrees to provide support as requested by Sprout Media Lab within 3 days of a verbal or written request by Sprout Media Lab.
2. Compliance with Law: Client acknowledges that Sprout Media Lab exercises no control over the content of information passing through Client’s websites and that it is the sole responsibility of Client to ensure that the information it transmits and receives complies with all applicable laws and regulations
3. Non-Cancellation During Required Period.
i. After the expiration of the 12 Month Required Period, Client may cancel at any time with thirty (30) day prior written notice to Sprout Media Lab, such request to be effective thirty (30) days from the receipt by Sprout Media Lab of such notice, and shall terminate the remaining obligations of the parties hereunder, provided Client tenders payment to Sprout Media Lab for all then outstanding charges and liability incurred under the Consideration Article as provided herein.
ii. Once the Initial Term (first 12 months of this agreement) has expired, this Agreement shall continue on a month-to-month basis, and Client can cancel at any time with thirty (30) day prior written notice to Sprout Media Lab, such request to be effective thirty (30) days from the receipt by Sprout Media Lab of such notice, provided Client tenders payment to Sprout Media Lab for all then outstanding charges and liability incurred under the Consideration Article as provided herein.
II. DIGITAL MARKETING CONSIDERATION.
- The Parties hereby agree that the total consideration under this Agreement to be paid by Client to Sprout Media Lab is fixed and earned as of the date of execution of this Agreement. Unless otherwise noted in writing, this Agreement requires a (12) month period of full payment by Client for Digital Marketing Services provided by Sprout Media Lab.
- First payment equal to 100 (100%) of first month of Digital Marketing Services due on day of signing this Agreement.
- After the first month’s payment, monthly payments equal to 100 (100%) of Digital Marketing Services will be debited from Client credit card on file occurring on either the 1st or 15th of each month depending on the start date of Agreement.
III. WEBSITE DESIGN & DEVELOPMENT CONSIDERATION:
- The Parties hereby agree that the total consideration under this Agreement to be paid by Client to Sprout Media Lab is fixed and earned as of the date of execution of this Agreement. All websites will be completed and billed within sixty (90) days (unless otherwise stated on Website Agreement), Website billing to coincide with the following schedule:
- First payment equal to fifty percent (50%) of website price due on day of signing this Agreement;
- Second payment equal to twenty-five percent (25%) of website balance once homepage is approved by Client;
- Third payment equal to the twenty-five percent (25%) website balance due upon completion of website
- Client acknowledges and agrees that the third payment shall be due and payable regardless of site completion. Such final payment will be billed on the sixtieth (90th) day if there is no response from Client. Such final billing shall include, final billing for the website and first 6 months of digital marketing as set forth in this agreement, but not be limited to, any delays caused by the Client for whatever reason.
- Web Design Services. Sprout Media Lab shall charge the following rates, such rates subject to change with thirty (30) days advance written notice, for web design services:
i. Additional Web Page: Two Hundred and No/100 Dollars ($200.00);
ii. One page of Content (up to 500 words): One Hundred and No/100 Dollars ($100.00); or
iii. Additional Web Page including Content: Two Hundred Fifty and No/100 Dollars ($250.00).
iv. Hourly Rate. Sprout Media Lab shall charge One-Hundred Twenty-Five and No/100 Dollars ($125.00) per hour (“Hourly Rate”) and Client agrees to pay such Hourly Rate charges when invoiced from Sprout Media Lab.
v. Set-Up Fees. In the event any set-up fees are waived, Client acknowledges and agrees that such set-up fees shall be due and payable in the event of cancellation for whatever reason during the first 12 Months (12) months of the Initial Term.
4) Notwithstanding anything in this Agreement to the contrary, failure of Client to pay any amount due within thirty (30) days of any applicable due date shall, at the option of Sprout Media Lab, result in the termination of this Agreement and render any remaining consideration in the “Initial Term” immediately due and payable.
IV. CONFIDENTIALITY:
1. Confidential Information Defined: Each Party acknowledges that it will have access to certain confidential information of the other Party concerning the other Party’s business, plans, customers, technology and products, including the terms and conditions of this Agreement (“Confidential Information”). Confidential Information includes, but is not limited to: descriptions, business plans, software, internet designs, test data, meta-tags, other data, reports, recommendations, marketing plans, advertising material, customer lists, business records, projections, products, product information, financial information, other plans or proposals, proprietary information, descriptions as proprietary code, Google Adwords Account, and any other information disseminated by one Party to the other to further the purpose of this Agreement and the performance thereof.
2. Client agrees that should it fail to fulfill the Initial Term for any reason whatsoever, including but not limited to cancellation during the Trial Period, Sprout Media Lab shall own all rights to the Confidential Information and shall be allowed to remove unilaterally any such Confidential Information from Client’s website.
3. Such ability of Sprout Media Lab to remove such meta-tags and proprietary code shall be in addition to and not in lieu of such other and further rights and remedies available to Sprout Media Lab at law or equity.
4. Sprout Media Lab owns all rights to the Confidential Information, including specifically any Proprietary Code and Marketing Content regarding the Meta Tags & Pay Per Click Campaigns set up on behalf of Client. It is at the discretion of Sprout Media Lab to transfer rights of said Proprietary Code & Marketing Content upon Termination of this Agreement prior to the expiration of the Initial Term.
5. Client hereby represents, warrants and agrees that he, she or it (as applicable) has special, unique, unusual and extraordinary knowledge regarding the ownership and operation of the business, such that breach of the terms or provisions of Article III of this Agreement would result in damages to Sprout Media Lab which would not be easily ascertainable. Accordingly, in the event Client breaches the terms or provisions of Article III hereof, Sprout Media Lab shall be entitled, in addition to any other rights and remedies which it may have, to injunctive and other equitable relief against Client. Client hereby agrees to waive any and all required, applicable or necessary bond provisions associated with Sprout Media Lab seeking any such injunctive relief.
V. WARRANTIES:
1. Sprout Media Lab represents and warrants that it has the full power and authority to enter into this Agreement. The goods and services furnished under this Agreement are provided “as is,” without any express or implied warranties including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. SPROUT MEDIA LAB SPECIFICALLY DOES NOT PREDICT NOR GUARANTEE ANY PARTICULAR RANKINGS WITHIN SEARCH ENGINE LISTINGS.
2. Client represents and warrants that it has the full power and authority to enter into this Agreement. Client further represents and warrants that it will only provide to Sprout Media Lab copyrighted or trademarked material including trademarked brand names, trademarked logos and/or trademarked copyrighted phrases it has the legal authority to use. Client further represents and warrants that Client’s services, products, materials, data, and information used by Client and by its customers and users in connection with this Agreement do not, as of the date of this Agreement, and will not during the term of this Agreement operate in any manner that would violate any applicable law or regulation.
VI. LIMITATION OF SPROUT MEDIA LAB’S LIABILITY:
IN NO EVENT SHALL SPROUT MEDIA LAB BE LIABLE FOR ANY LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OF CLIENT’S BUSINESS, SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, SUFFERED BY THE CLIENT, WHETHER OR NOT CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, INJURY AND/OR DAMAGES. SPROUT MEDIA LAB MAXIMUM AGGREGATE LIABILITY TO CLIENT RELATED TO OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY CLIENT TO SPROUT MEDIA LAB HEREUNDER.
VII. PARTIES’ INDEMNITY OBLIGATIONS:
1. Client shall indemnify Sprout Media Lab against all claims, liabilities and costs, including reasonable attorneys’ fees, and defend any third party claim or suit against Sprout Media Lab arising out of Client’s acts. Sprout Media Lab shall promptly notify Client in writing of such claim or suit and Client shall have the right to fully control the defense and any settlement of the claim or suit.
2. Sprout Media Lab shall indemnify Client against all claims, liabilities and costs, including reasonable attorneys’ fees, and defend any third party claim or suit against Client arising out of Sprout Media Lab’s acts. Client shall promptly notify Sprout Media Lab in writing of such claim or suit and Sprout Media Lab shall have the right to fully control the defense and any settlement of the claim or suit.
VIII. SEVERABILITY:
If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
IX. GOVERNING LAW; DISPUTE RESOLUTION:
With an exception for those clients with a business located in North Carolina, this Agreement shall be construed and enforced in accordance with the laws of the State of Florida without regard to the choice of law principles thereof. Venue shall be at Volusia County, Florida.
For those clients with a business located in North Carolina, this Agreement shall be construed and enforced in accordance with the laws of the State of North Carolina without regard to the choice of law principles thereof. Venue shall be at Wake County, North Carolina.
X. GENERAL PROVISIONS:
1. Independent Contractors. The Parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for, or on behalf of the other party. This Agreement does not create any agency, association, partnership, joint venture, sales representation or employment relationship of any kind.
2. Notices. All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by either certified mail, return receipt requested, facsimile or hand delivery to the parties at the respective addresses set forth below or to such other address as the party to receive the notice has designated by notice to the other party:
If to Client: (Use details from Sales Agreement form)
If to Sprout Media Lab:
Sprout Media Lab, LLC
200 E Granada Blvd, Ste 207, Ormond Beach, FL 32176
Fax: (407) 494-3940
XI. TERMINATION FOR CAUSE:
Either party will have the right to terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within ten (10) days of the due date.