Terms of Service
These terms and conditions (“Terms”), together with the attached Digital Marketing Services Proposal ( the “Proposal”) constitute a legally binding agreement between you (the “Client”) and Magnetic Brand by Justyna Nielsen ("Service Provider" or “MB”), for the provision of: strategy, digital, creative, marketing services and/or other services set out in the Proposal (the “Services”) effective from date of acceptance of the Proposal by making first payment OR the Client starts using the Services. MB and Client may sometimes be collectively referred to in this Agreement as the “Parties,” or each individually, a “Party.” In consideration of mutual promises contained herein and the terms and conditions set forth herein. Thhe Parties agree to the following:
1. Effective and Completion Dates.
This Agreement shall be effective as of the date of the first payment and shall continue until completion of the Marketing Package as outlined in the proposal.
2. Services
2.1. MB agrees to provide the Services to Client in accordance with these Terms. The Proposal, together with any attachments, shall define the Services to be performed (the “Work”) and the materials to be provided (the“Materials”).
2.2. These Terms are hereby incorporated by reference into the Proposal, and together with the Proposal and any attachments, represent the complete agreement between the Parties (the “Agreement”).
2.3. In order for MB to provide the level of Services contained in the Agreement, MB requires input from Client to gather information about Client’s business, products and services relevant to the Services.
Client shall: (a)cooperate with MB in all matters relating to MB providing Services to Client; (b) respond promptly to any MB’s request for information, approvals, authorizations or decisions that are reasonably necessary for MB to perform services in accordance with this Agreement; (c) provide such information as MB may request in order to carry out Services. If MB’s performance of its obligations under this Agreement is prevented or delayed by any act oromission of Client, its agents, subcontractors, consultants or employees, MB shall not be deemed in breach of itsobligations under this Agreement or otherwise liability for any costs, charges, or losses sustained or incurred byClient.
2.4. MB may subcontract portions of the Services to subcontractors/other service providers, who may deal with the Client directly. Nevertheless, MB alone will be responsible to the Client for the Services, the performance of theServices, and other obligations set forth.
2.5. MB is available to provide services during their business hours of: Monday – Friday 10 am – 4 pm CST, excluding U.S. national holidays and scheduled days off. Service requests and email/text communication response time is up to 24 hours during business days. Some service request completion may require additional time to complete and shall be quoted upon request. If the Client requests to schedule a meeting with the MB outside of these office hours, this shall be agreed upon by both Client & Service Provider. Support is available during business hours: Phone 608-909-1229, Email: justyna@magneticbrandonline.com, Zoom as the preferred source of communication between Client and Service Provider.
3. Payment
3.1. The clients agrees to pay the fee (as defined in the proposal) and authorize the Service Provider to charge their provided credit card or debit card, receive funds, or other electronic payments for the services rendered in the Marketing Consulting Package. The client represents and warrants that all payment information is true and they are authorized to use the payment instrument. The client will promptly update their payment information with any changes (for example, a change in billing address or credit card expiration date).
3.2. The client is responsible for full payment of the fee, regardless of whether they choose to only use a portion of the services made available to them, including, but not limited to, whether the Service Provider has limited Client’s access to the services or materials because of late payments. The Service Provider does not issue refunds under any circumstances. Client waives the right to a chargeback.
3.3. All payments must be made on a timely basis as invoiced in accordance with the terms of this Agreement and are payable by within seven (7) days of being invoiced. Client agrees that they will be charged a late fee of 10% of the total amount due on a monthly basis until payment is received. In addition, if Client carries a past due balance for more than seven (7) days, all work will be postponed. Work will resume once payment is made current.
3.4. Payment. Client shall make all payments of Fees hereunder in U.S. dollars. Client agrees to reimburse upon demand any returned check or NSF fees incurred by MB arising from Client’s payment.
4. Termination.
4.1. The Service Provider may, in its sole discretion, terminate this Agreement, and limit, suspend, or terminate your participation in the Marketing Services Package without refund or forgiveness of monthly payments if client fails to follow the Marketing Services Package guidelines, attached hereto as Exhibit B or otherwise violates or is in breach of any provision of this Agreement.
4.2. This Agreement can be terminated by either of the Parties upon providing not less than thirty (14) days’ written notice of a termination to the other Party. On such date this Agreement shall be terminated. In the event of such termination, the Parties shall remain responsible for all obligations or liabilities arising under the law or this Agreement relating to the Services provided prior to the date of termination or reduction. Such termination shall take effect as soon as the Parties are able to effect same.
5. Independent Contractor.
The Parties acknowledge and agree that MB is an independent contractor. MB shall have the direction and control of its services to Client, including details with respect to attainment of the result, hours of work, the methods utilized to perform the work, and the terms and conditions of employment of any employees employed by MB. Nothing contained in this Agreement shall be construed so as to create a partnership between the Parties or to authorize either Party to act as a joint venturer, general agent, affiliate, or employee of the other Party. Neither Party shall have any authority to make contracts, commitments, statements or representations on behalf of the other Party, except as set forth in this Agreement. This Agreement is nonexclusive. It does not prohibit MB from offering professional services to other persons or organizations, and it does not prohibit Client from using other consultants for services similar to those contemplated under this Agreement.
5. Confidential Information.
We respect client's privacy and require that the client respects the privacy of the Service Provider. The client agrees (1) not to violate the publicity or privacy rights of the Service Provider. (2) that any Confidential Information (as defined herein) shared by the Service Provider is confidential and proprietary, and belongs solely and exclusively to the Service Provider, (3) not to disclose the Confidential information to any other person or use it in any manner. For purposes of this Agreement, "Confidential Information" shall include all information or material that has or could have commercial value or other utility in the business in which the disclosing party is engaged. The disclosing party can be any participant in the Service Provider. Confidential Information includes, but is not limited to, any trade secret, information, process, technique, algorithm, program, design, drawing, formula, test data, methods (including, but not limited to, the sequence of steps) relating to any research project, work in process, future development, engineering, manufacturing, marketing, servicing, financing or personnel matter relating to the disclosing party, its present or future products, sales, suppliers, clients, employees, investors, or business, whether in oral, written, graphic or electronic form.
a. Exclusions from Confidential Information.
The receiving party's obligations under this Agreement do not extend to Information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the receiving party; (b) discovered or created by the receiving party before disclosure by disclosing party as evidenced by its records; (c) learned by the receiving party through legitimate means other than from the disclosing party or disclosing party's representatives; or (d) is disclosed by receiving party with disclosing party's prior written approval.
b. Obligations of Receiving Party.
Receiving party shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the disclosing party. Receiving party shall carefully restrict access to Confidential Information to employees, contractors, and third parties as is reasonably required and shall require those persons to sign nondisclosure restrictions at least as protective as those in this Agreement, provided that disclosing party has granted permission to do so. Receiving party shall not, without prior written approval of disclosing party, use for receiving party's own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of disclosing party, any Confidential Information. The receiving party represents and warrants that it shall protect the Confidential Information received with at least the same degree of care used to protect its own Confidential Information from unauthorized use or disclosure. c. Time Periods. The Confidential Information provisions of this Agreement shall survive the termination of this Agreement and receiving party's duty to hold Confidential Information in confidence shall remain in effect until the Confidential Information no longer qualifies as a trade secret or until disclosing party sends receiving party written notice releasing receiving party from this Agreement, whichever occurs first.
6. Consumer Privacy
Client acknowledges that the Services, while comprised in part of data keyed in by the Client, describes information that may be deemed to be sensitive information by some consumers. It is the policy of MB to respect the request of consumers to remove their name, mailing address, e-mail address or telephone number from use in solicitation. Client’s agreement to comply with this policy is an integral condition to MB entering into this Agreement.
7. Ownership of Work and Materials
MB shall retain all right, title and interest in and to any methodologies it uses in performing services under this Agreement, although Client may, while and after MB renders its services, utilize said methodologies to the extent reasonably necessary to carry out any recommendations of MB or utilize any materials prepared by MB. MB agrees that all materials or other materials generated by MB under this Agreement shall be provided to Client, and shall be and remain the property of, and ownership shall vest in, Client. Said ownership rights shall be worldwide and perpetual. MB specifically agrees that all materials and other property generated or developed under this Agreement shall be considered works made for hire and that such material and other property shall, upon creation, be owned by Client exclusively and perpetually and on a worldwide basis. To the extent that any such material or other property, under applicable law, may not be considered works made for hire, MB hereby assigns to Client the exclusive, perpetual and worldwide ownership of such material and other property, without the necessity of any further consideration.
8. Limitation of Liability
Client’s sole and exclusive remedy for any claim against MB with respect to the quality of the Services shall be the correction by MB of any material defects or deficiencies therein, of which Client notifies MB in writing within thirty (30) days after the completion of that portion of the Services. In the absence of any such notice, the Services shall be deemed satisfactory to and accepted by Client. In no event shall MB be liable for any loss of profit or revenue by Client, damage or loss of data, anticipated profits, revenues, anticipated savings, goodwill or business opportunity or for any other consequential, incidental, indirect or economic damages incurred or suffered by Client arising as a result of or related to the Services, whether in contract, tort, or otherwise, even if Client has been advised of the possibility of such loss or damages. Client further agrees that the total liability of MB for all claims of any kind arising as a result of or related to this Agreement, or to any act or omission of MB, whether in contract, tort or otherwise, shall not exceed an amount equal to the amount actually paid by Client to MB for the Services during the twelve (12) month period preceding the date the claim arises. Client shall indemnify and hold MB harmless against any claims by third parties, including all costs, expenses and attorneys' fees incurred by MB therein, arising out of or in conjunction with Client’s performance under or breach of this Agreement.
9. Warranties
MB warrants that Services will be provided in a workmanlike manner, and in conformity with generally prevailing industry standards. This warranty is exclusive and is in lieu of all other warranties, whether express or implied, including any warranties of merchantability or fitness for a particular purpose and any oral or written representations, proposals or statements made on or prior to the effective date of this agreement. Except as otherwise stated in this section, the service is provided “as is” without warranty of any kind, either express or implied, including without limitation any warranties of merchantability or fitness for a particular purpose. provider neither assures nor assumes any liability to any person or entity for the proper performance of services. mb does not represent or warrant that the service is complete or free from error, and does not assume, and expressly disclaims, any liability to any person or entity for loss or damage caused by errors or omissions in the service, whether such errors or omissions result from negligence, accident, or other cause.
10. Indemnification
Each Party (“Indemnifying Party”) agrees to defend, indemnify and hold harmless the other party, its directors, officers, employees, agents, and those of its affiliates (“Indemnified Parties”), from any and all claims, causes of action, judgments, settlements, losses, damages, demands, liabilities, fines, penalties, litigation and other expenses (including, without limitation, reasonable attorneys’ fees and court costs) asserted by a third party (including governmental agencies) against an Indemnified Party: (a) arising from or relating to the Agreement (including personal injury, death, or property damage) to the extent caused or arising out of the negligence, willful misconduct, breach of this by the Indemnifying Party or an agent of the Indemnifying Party; or (b) violation of law by the Indemnifying Party or an agent of the Indemnifying Party. An Indemnified Party agrees to provide prompt notice to the Indemnifying Party of any claim for which indemnification is sought hereunder and reasonable cooperation by the Indemnified Party in the defense of such claims at the Indemnifying Party’s expense. No settlement of a claim that affects the rights of the Indemnified Party hereunder shall be entered into without the prior written consent of Indemnified Party.
11. Miscellaneous
11.1. Compliance with Law. The Parties shall perform their obligations hereunder in compliance with all laws, statutes, ordinances, orders, regulations, and other governmental mandates of any nation, territory, or union of nations with jurisdiction over its exercise of its rights and/or discharge of their responsibilities under this Agreement. The construction, interpretation and enforcement of this Agreement shall be governed by the substantive law of the United States of America and the State of Wisconsin, U.S.A., without regard to its conflict of law provision
11.2. Publicity. Client agrees to act as a reference for MB’s Services. In addition, Client agrees distribution of any given testimonials, pictures, videos, digital audio files made available on the Internet (“Podcasts”), articles, blog and social media posts and advertising related to MB’s Services per MB’s request, including but not limited to, an initial testimonial after completion of implementation related to aspects of Client’s Services use. Client hereby authorizes MB’s use of Client’s name, description and logo as described above.
11.3. Force Majeure. No Party shall be liable for any delay or failure in its performance of any of the acts required by this Agreement when such delay or failure arises for reasons beyond the reasonable control of such Party. The time for performance of any act delayed by such causes shall be postponed for a period equal to the delay; provided, however, that the Party so affected shall give prompt notice to the other Party of such delay. The Party so affected, however, shall use its best efforts to avoid or remove such causes of non-performance and to complete performance of the act delayed, whenever such causes are removed.
11.4. Assignment. Neither Party may sell, assign, or transfer any rights or interests created under this Agreement or any Order Form, or delegate any of its duties. Any such assignment or delegation shall be void.
11.5. Entire Agreement. This Agreement (including all attachments hereto) is intended by the Parties hereto to be the final expression of their agreement, and it constitutes the full and entire understanding between the Parties with respect to the subject hereof. This Agreement may be amended only by manual signatures by the Parties to this Agreement and cannot be amended by website or other electronic agreements. If a waiver, amendment or modification of any provision of this Agreement is handwritten, typed or otherwise included within the physical confines of the document, it shall not be effective unless specifically manually initialed by the Party against whom enforcement of such waiver, amendment or modification is sought.
11.6. Survivability. Sections: Compliance with Law, Entire Agreement, Confidentiality, Warranties, 1Indemnification, Limitation of Liability and Term and Termination shall survive termination of this Agreement.
