Freebies1. Agreement
1.1 This Agreement sets forth the terms and conditions governing the provision of digital marketing services ("Services") by Smarttly ("Agency"), a USA-based company, to the client ("Client") according to or in connection with the statement of work, order form, estimate, invoice or other documents to which these T&Cs are attached, or which references these T&Cs (collectively, the “Schedules”).
1.2 By signing this Agreement or otherwise engaging the Agency's Services, the Client acknowledges and agrees to be bound by these Terms and Conditions.
2. Services
2.1 The specific Services to be provided by the Agency are to be outlined in the Statement of Work ("SOW") to be attached to the Consulting Service Agreement entered into with the client.
2.2 The Agency shall use commercially reasonable efforts to provide the Services in a professional and timely manner.
2.3 The Agency may, at its sole discretion, modify or update the Services from time to time. The Client will be notified of any such modifications.
3. Client Responsibilities
The Client shall:
3.1 Provide the Agency with all necessary information and materials requested by the Agency to perform the Services, including but not limited to website content, branding materials, target audience information, and access to relevant accounts (e.g., Google Analytics, social media accounts).
3.2 Cooperate with the Agency in all matters relating to the performance of the Services. * Ensure that all information provided to the Agency is accurate and complete.
3.3 Obtain and maintain all necessary licenses, permissions, and consents required for the Agency to use any materials provided by the Client.
3.4 Be responsible for the payment of all applicable taxes and fees associated with the Services.
4. Intellectual Property
4.1 The Client retains all rights, title, and interest in and to its own intellectual property, including but not limited to trademarks, copyrights, and trade secrets.
4.2 The Agency retains all rights, title, and interest in and to its own intellectual property, including but not limited to the design and development of any custom-built software or tools used to perform the Services.
4.3 The Agency grants the Client a non-exclusive, non-transferable license to use any materials created by the Agency specifically for the Client's use in connection with the Services.
5. Fees and Payment
5.1 The fees for the Services are outlined in the SOW.
5.2 Unless otherwise stated in the SOW, payment shall be made no later than 30 days after the applicable invoice date from the Agency. Client shall be responsible for all taxes in connection with the Services (excluding taxes based on Agency’s net income).
5.3 All invoices shall be deemed accepted unless disputed in good faith within 10 days of receipt. If an invoice is disputed, the Client shall pay the undisputed portion of the invoice when due. Late payments may be subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is less. The agency reserves the right (without limiting its other rights or remedies) to suspend all Services in the event of late payment. Client shall also pay to the Agency all costs and expenses, including reasonable attorney’s fees, incurred in the collection of any delinquent amounts.
6. Confidentiality
6.1 Both parties agree to hold confidential all confidential information disclosed by the other party in connection with this Agreement. "Confidential Information" shall mean any information that is designated as confidential or that, by its nature, would reasonably be considered confidential.
6.2 Notwithstanding the foregoing, neither party shall be obligated to maintain the confidentiality of any information that:
Is or becomes publicly known through no fault of the receiving party;
Was rightfully in the receiving party's possession before disclosure by the disclosing party;
Is independently developed by the receiving party without the use of the disclosing party's Confidential Information; or
Is lawfully required to be disclosed by law, regulation, or court order.
7. Limitation of Liability
7.1 To the maximum extent permitted by law, the Agency shall not be liable for any indirect, incidental, special, consequential, or punitive damages arising out of or relating to this Agreement or the Services, even if advised of the possibility of such damages.
7.2 In no event shall the Agency's total liability to the Client for any and all claims arising out of or relating to this Agreement exceed the total fees paid by the Client to the Agency for the Services during the twelve (12) month period preceding the date on which the claim arose.
8. Disclaimer of Warranties
8.1 The services are provided "as is" and "as available" without warranty of any kind, express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
8.2 The agency makes no warranty that the services will be uninterrupted, error-free, or secure, or that any defects will be corrected.
8.3 Client acknowledges that agency has no control over information and materials once they have been published, released or posted in the public domain as requested or approved by client, including, without limitation, via seeding materials on social networking websites, video sharing websites, the use of internet-based “widgets” or any other platforms that make use of user-generated content. Agency shall not be responsible for ensuring the accuracy of any content any third party publishes including, text, photographs, audio or video or for any other third party actions.
9. Termination
9.1. Either party may terminate this Agreement (including all Schedule(s)) and/or the applicable Schedule(s) immediately on written notice to the other party, if the other party breaches any material provision of the Agreement or applicable Schedule(s) and (where such breach is capable of remedy) does not remedy that breach within thirty (30) days of being required to do so in writing. If a party has a right to terminate one or more Schedule according to this clause, it may choose either to terminate only the Schedule in question or the Agreement in its entirety.
9.2. Either party may terminate this Agreement immediately on written notice to the other party if: (i) the other party has a receiver, administrator, liquidator or provisional liquidator appointed over all or any part of its assets (or their respective equivalents in any other jurisdiction); (ii) if the other party makes an assignment for the benefit of creditors or a similar filing or proposal under any bankruptcy or insolvency legislation; or (iii) the other party is declared bankrupt or insolvent.
9.3. Either party may terminate this Agreement at any time effective upon not less than ninety (90) days’ prior written notice to the other party.
9.4. Upon termination or expiration of any agreement or arrangement for the Services between Client and Agency, Client shall assume responsibility for, and indemnify Agency in respect of, all contracts and commitments entered into by Agency on behalf of or for or the benefit of the Client, and shall pay for all Services rendered, prior to the effective date of termination or expiration. Upon the effective date of termination or expiration, and subject to clause 3 of these T&Cs, Client shall pay Agency an amount equal to the unpaid remaining portion of any third-party commitment made by Agency and approved by Client that cannot be terminated by or before the date of such termination or expiration. For the avoidance of doubt, no termination or expiration of any agreement or arrangement for the Services between the Client and Agency shall relieve the Client from the obligation to pay Agency for all Services rendered or approved out-of-pocket expenses incurred or committed to before such effective date of termination.
10. Governing Law
10.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Wyoming, USA, without regard to its conflict of law principles.
11. Dispute Resolution
11.1 The parties shall use their best efforts to resolve any dispute arising out of or relating to this Agreement through good faith negotiation.
11.2 If the parties are unable to resolve a dispute through negotiation, such dispute shall be finally settled by arbitration in accordance with the rules of the American Arbitration Association ("AAA"). The arbitration shall be conducted in Wyoming, and the award rendered by the arbitrator shall be final and binding upon the parties and may be entered as a judgment in any court of competent jurisdiction.
12. Independent Contractor
12.1 The Agency is an independent contractor and not an employee or agent of the Client. The Agency shall be solely responsible for the payment of all applicable taxes and other employment-related expenses.
13. Entire Agreement
13.1 This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, representations, and agreements, whether oral or written.
14. Severability
14.1 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain in full force and effect.
15. Waiver
15.1 No waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the waiver is sought to be enforced.
16. Notices
16.1 All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered personally, upon the first business day following deposit in the United States mail, postage prepaid, certified or registered, return receipt requested, addressed as follows:
If to the Agency: [Your Agency Name] [Your Agency Address]
If to the Client: [Client Name] [Client Address] or to such other address as either party may designate in writing from time to time.
17. Assignment
17.1 This Agreement shall not be assigned by either party without the prior written consent of the other party, except that the Agency may assign this Agreement without the Client's consent to an affiliate or in connection with a merger, acquisition, or sale of all or substantially all of the Agency's assets.
18. Force Majeure
18.1 Neither party shall be liable for any delay or failure to perform its obligations under this Agreement due to causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, fire, flood, earthquake, labor disputes, and unavailability of materials.
19. Counterparts
19.1 This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
20. Survival
20.1 The provisions of Sections [list applicable sections, e.g., 4 (Intellectual Property), 6 (Confidentiality), 7 (Limitation of Liability), 8 (Disclaimer of Warranties), 10 (Governing Law), 11 (Dispute Resolution)] shall survive the termination or expiration of this Agreement.
21. Interpretation
21.1 The headings used in this Agreement are for convenience only and shall not affect the interpretation or construction of this Agreement.
22. Binding Effect
22.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.