PRIVACY AND PROTECTION OF PERSONAL INFORMATION
See the privacy statement for disclosures relating to the collection and use of your information.
All content available on the Site is the copyrighted work of Smart Media Ltd. Any reproduction or redistribution of this Site, in whole or in part, without the written permission of SmartMedia.Agency is expressly prohibited by law, and may result in civil and criminal penalties. All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”), as well as the coordination, selection, arrangement and enhancement of such Proprietary Material, that users see or read on the Site is owned by SmartMedia.Agency or is used with permission. This Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Users may not copy, download, use redesign, reconfigure, or retransmit anything from the Site without SmartMedia.Agency ’s prior express written permission.
SmartMedia.Agency makes no representations about the suitability of the information or content contained on the Site for any purpose. All such materials are provided “as is” without warranty of any kind. SmartMedia.Agency disclaims all warranties and conditions with regard to the Site, including all warranties and conditions of merchantability, whether express, implied or statutory, fitness for a particular purpose, title and non-infringement. In no event shall SmartMedia.Agency be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of information available from the Site.
NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Site, you will not use the Site for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Site in any manner that could damage, disable, overburden, or impair the Site or the servers that host it, or interfere with any other party’s use and enjoyment of the Site. You may not attempt to gain unauthorized access to the Site, or accounts, computer systems or networks that may be accessed through the Site, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site.
SmartMedia.Agency may terminate your access to the Site at any time and for any reason with or without notice to you. SmartMedia.Agency shall not be liable to you for any loss associated with termination of such access.
LINKS TO THIRD PARTY SITES
MODIFICATIONS TO THE SITE
SmartMedia.Agency reserves the right in its sole discretion to review, improve, modify or discontinue, temporarily or permanently, the Site or any content or information on the Site with or without notice to the user and SmartMedia.Agency shall not be liable to user or any third party for any modification or discontinuance of the Site.
Failure by SmartMedia.Agency to enforce any provision(s) of these Terms shall not be construed as a waiver of any provision or right.
These Terms, and all other aspects of use of the Site, shall be governed by and construed in accordance with the laws of the State of Connecticut, without regard to its conflict of laws rules. All claims and disputes arising out of these Terms or use of the Site shall be exclusively brought in the federal, state or local courts located in Hartford, Connecticut; and, with regard to such claims and disputes, Users hereby irrevocably (i) submit to the exercise of personal jurisdiction over them by these courts, and (ii) waive any jurisdictional, venue or inconvenient forum objections to such courts.
If any provision of these Terms is found to be invalid or unenforceable, the remaining provisions shall be enforced to the fullest extent possible, and the remaining Terms shall remain in full force and effect.
SMARTMEDIA.AGENCY CLIENT TERMS AND CONDITIONS
For purposes of these SmartMedia.Agency Client Terms and Conditions (“Terms”), “SmartMedia.Agency ”, “we” or “our” refers to Smart Media Ltd, and “Client,” “you” or “your” refers to your company. Please read these Terms carefully as they, together with your signed Proposal (hereinafter “Service Agreement”) and any Change Orders constitute your entire agreement with SmartMedia.Agency (hereinafter the “Agreement”). By engaging SmartMedia.Agency to provide services to you, you agree to be legally bound by these Terms. SmartMedia.Agency reserves the right to change or modify these Terms at any time and in its sole discretion by posting the amended Terms on our website at http://www.SmartMedia.Agency/terms/. Unless otherwise specified, any changes or modifications will be effective immediately upon posting on the website and your continued use of SmartMedia.Agency’s services after such time will constitute your acceptance of such changes or modifications.
- Point of Contact: SmartMedia.Agency will need at least one point of contact from you for day-to-day communications. This person will be responsible for: i) gathering your company’s data, files, or other content required for SmartMedia.Agency to complete its deliverables; ii) attending conference calls or meetings at key intervals with SmartMedia.Agency; and iii) coordinating internal communications with your team regarding the status of the project. They will receive all communications from your contact person(s) at SmartMedia.Agency. Unless another individual is expressly designated in the Service Agreement as your company’s point of contact to whom SmartMedia.Agency should direct all communications, there will be a legal presumption that any person holding themselves out as representing your company’s interests relative to the services, and/or having day to day contact with SmartMedia.Agency in its performance of the services, is your company’s point of contact and is legally authorized to make decisions on your company’s behalf. As such, SmartMedia.Agency will move forward with work authorized by this point of contact and Client shall be responsible for payment for such services.
- Deadlines: Client is responsible for meeting time deadline(s) associated with SmartMedia.Agency’s performance of the deliverables which may include but are not limited to deadlines for providing content and/or approvals. SmartMedia.Agency is not responsible for late deliverables resulting from Client’s failure to meet time deadlines specified by SmartMedia.Agency. Client also understands that if it makes changes in scope, requests additional deliverables or requires revisions of work delivered beyond what was set forth in the Service Agreement during the course of a project, this will affect the deadlines originally set at the outset of the project and SmartMedia.Agency will not be considered to have failed to meet the deadline set forth in the original Service Agreement for that project.
- Content: Unless otherwise specifically stated as a part of the deliverables in the Service Agreement, Client is responsible for providing all content necessary for SmartMedia.Agency’s performance of the deliverables, including but not limited to written copy, logos, photographs, video, music, fonts and/or other materials. The pricing reflected in your Service Agreement with SmartMedia.Agency assumes that content will be readily provided to SmartMedia.Agency in a manner specified by SmartMedia.Agency, in acceptable format(s), and that SmartMedia.Agency will not be required to pull content from other Client website(s), follow up with prior vendors of Client, find content from third party sources or otherwise spend time obtaining, aggregating or organizing content on Client’s behalf. In situations where SmartMedia.Agency must locate, aggregate, organize or create content on Client’s behalf, Client will be charged for such additional time at a rate of $150/hour. Logos, graphics, and/or photographic images should be supplied in an electronic acceptable format, such as high-resolution jpeg. Photo scans are typically charged at $25 per scan. Photo retouching, manipulation, or illustration is billed at the rate of $150 per hour. This pricing may vary based upon the original source material and the required output.
- If written copy is not addressed in the Service Agreement and Client requires SmartMedia.Agency to write copy for inclusion in the deliverables, the cost is $150 per hour. In the case where Client is responsible for but has failed to provide written content to SmartMedia.Agency to allow it to perform the deliverables under this Agreement and SmartMedia.Agency therefore must obtain written content from other sources, SmartMedia.Agency disclaims any warranties over the accuracy and reliability of any such information. Client warrants and agrees that it shall be solely responsible for reviewing the accuracy of all written content provided by SmartMedia.Agency in connection with its provision of the deliverables before publication. Client must ensure that the content is factually accurate and not false or misleading.
- Where Client is providing content, Client shall be responsible for obtaining all required licenses, permissions and/or approvals for use of such content. Client warrants and agrees that where it has provided content to SmartMedia.Agency, it has full legal authority to use such content and/or has obtained the required licenses, permissions, and/or approvals and warrants that such content is not in violation of any third party’s copyright(s), trade or service marks or other intellectual property rights. Further, client assumes responsibility for the accuracy, spelling and truthfulness of all content it provides to SmartMedia.Agency. All Client-provided content including all pre-existing trademarks and copyright material, shall remain the sole property of Client, and Client shall be the sole owner of all rights in connection therewith. Client hereby grants to SmartMedia.Agency a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely in connection with SmartMedia.Agency ’s performance of the services and the production of the deliverables.
- Where SmartMedia.Agency has agreed to develop a website, video, web, mobile or social media application, email template, etc., such deliverables may require the purchase or license of fonts, photographs, background music, video clips, APIs, plug-ins or other items from a third party. The cost of same is NOT included in the pricing set forth in your Service Agreement with SmartMedia.Agency. Client may either purchase or license those items on their own or SmartMedia.Agency may purchase/license them on Client’s behalf. If Client has not specified that it would like to license these items on their own, SmartMedia.Agency will assume that it should license them and will invoice Client for same. Third party items that Client (or SmartMedia.Agency on behalf of Client) licenses from a third party to be placed deliverables created by SmartMedia.Agency for Client will not be owned by Client. Client should not use such content in other items, such as print materials or promotional items, or otherwise use such content inconsistent with the third party’s terms of licensing such use. Upon request, SmartMedia.Agency will provide Client with a listing of third party content used in the deliverables and the source(s) of such content so that Client may review the licensing requirements associated with that content.
- Design – What is Included/Not Included: Unless otherwise specifically stated as a part of the deliverables in your Service Agreement with SmartMedia.Agency , if Client has engaged SmartMedia.Agency to design a website, web application, mobile site, email template or the like, SmartMedia.Agency will provide two home page designs for Client to choose from. Additional designs can be provided at additional cost. In the case of web and/or mobile sites, once Client has selected the design it would like to use as the home page, it will be permitted one round of revisions to that design Once those revisions have been made, SmartMedia.Agency will design one subpage template that will follow the same look and feel of the home page. Client will be permitted one round of revisions to that subpage template. Please note that the same subpage template will be used for all of the other pages of the site. Additional revisions beyond those set forth above or additional template designs will be billed to the client at the rate of $150/hour. Also, please note that the design of the layout/placement of the content in each of the subpages of a site is not included in the cost of the project. Rather, Client will be asked to advise where they wish to place images, content, etc. within each of the subpages. Should Client require assistance in designing a proper aesthetic for each of the subpages this will be at an additional charge of $150/hour. Finally, alterations to or resizing of graphics for placement in the subpages will also be at an additional charge of $150/hour.
- Scope change: If Client requests additional work not included in the original scope of the Service Agreement, Client will be responsible for all additional charges. Scope changes include but are not limited to, additional design comps, additional rounds of revision, additional copyrighting/edits, additional video edits, changes to website/web application functionality, addition of plug-ins or other technical capabilities. If a Change Order form or amendment to the Service Agreement is not completed for the change in scope, Client’s emailed or verbal request for any work not included in the original scope of the Service Agreement will be deemed a change order request for which payment will be required. The pricing for the scope change will be the amount set forth in email or verbal communications between Client and SmartMedia.Agency or in a Change Order form. If no amount has been specified, Client will be billed at the rate of $150/hour.
- Third party providers: Client will be billed for all third party costs, including but not limited to domain name purchases and renewals, website hosting fees, ESP (email service provider platforms) such as Mailchimp or ConstantContact, CMS (content management system) licenses such as WordPress or Joomla, social media advertising platforms and telephone and SMS messaging platforms. Some providers charge based on the volume of the number of email sends, posts, ads placed, calls made or messages sent. Client will be charged for any overages caused by Client’s exceeding a specified number of sends, posts, ads and the like.
- Third Party Cancellation fees: Where SmartMedia.Agency has purchased licenses from third parties on behalf of Client and Client seeks to terminate the arrangement prior to expiration of the term required for same, Client shall be responsible for all applicable cancellation fees required from those third parties and also shall be responsible for SmartMedia.Agency ’s time spent having to process such cancellations at the rate of $150/hour.
- Retainer/monthly bank of hours clients: If you are on a monthly marketing retainer/bank of hours, in most cases you will be advised in your Service Agreement the maximum number of monthly marketing hours you are allotted. We strive to use up to your maximum allotted hours per month; however, occasionally, this is not possible because we are awaiting content or approvals from you for the proposed marketing initiatives or you may have asked to defer some hours in anticipation of a large future initiative. Except as otherwise specified in the Service Agreement or otherwise specifically agreed to in writing by SmartMedia.Agency, if you do not use all marketing retainer hours in a month, unused hours may roll forward only to the end of the term of the Agreement. If they are not used they are forfeited. If you exceed the maximum number of hours in a month, SmartMedia.Agency , at its discretion will either reduce your bank of hours for the upcoming month or bill you at the rate of $150/hour for any overages.
- Branding Clients: If Client has engaged SmartMedia.Agency to assist with business name selection, logo creation or slogan creation, please be advised that SmartMedia.Agency cannot search trademark or other databases to ensure that the name or mark is not already being used, is/is not available to be trademarked or otherwise provide advice on whether the contemplated name or mark is legally available as SmartMedia.Agency cannot provide legal advice to its clients. SmartMedia.Agency encourages Client to retain an attorney to assist in this process.
- Search Engine Optimization Clients:
- Client acknowledges the following with respect to SEO services from SmartMedia.Agency :
- SmartMedia.Agency has no control over the policies and ranking algorithms of search engines with respect to the type of sites and/or content that they accept now or in the future. A Client’s website may decline in rankings or become deindexed from any search engine or directory at any time at the sole discretion of the search engine or directory.
- Due to the competitiveness of some keywords/phrases, ongoing algorithm changes, and other competitive factors, SmartMedia.Agency does not guarantee specific rankings or search engine results page positions for any particular keyword, phrase, or search term.
- Search engines have been known to rank pages over time, therefore we cannot guarantee the rankings and traffic of new websites (or pages) to improve in “x” amount of time.
- Engaging in link schemes, link exchanges or buying links can negatively impact your site’s rankings. SmartMedia.Agency does not assume liability for Client’s choice to link to or obtain a link from any particular website without prior consultation, nor does SmartMedia.Agency assume liability for ranking, traffic, indexing issues related to such penalties.
- SmartMedia.Agency ’s SEO process takes at least 2-3 months to show some significant effect. During this time, the Client’s site is analyzed and optimized within the timelines and resources specified in the agreement. Achieving stable ranking improvements can take up to 6-12 months.
- SmartMedia.Agency is not responsible for changes made to the website by other parties that adversely affect the site’s visibility in search engine results.
- SmartMedia.Agency makes no guarantee/warranty of project timelines or added expenses if SEO work is destroyed either wholly or in parts, either knowingly or unknowingly by any party other than SmartMedia.Agency or without the prior consultation of SmartMedia.Agency .
- SmartMedia.Agency is not responsible for the Client or any of its affiliates overwriting SEO work. The Client will be charged an additional fee for re-constructing, re-optimizing content/web pages, based on the hourly rate of $150 per hour.
- Media/Advertising Clients
- Client acknowledges the following with respect to media/advertising services from SmartMedia.Agency:
- SmartMedia.Agency accepts no responsibility for policies of advertising networks, third-party search engines, directories or other web sites that SmartMedia.Agency may submit to with respect to the classification or type of content it accepts, whether now or in the future. Client’s website or content may be excluded or banned from any third-party resource at any time if their policies are not adhered to. Client agrees not to hold SmartMedia.Agency responsible for any liability or actions taken by third-party resource under this Agreement.
- SmartMedia.Agency does not guarantee position, consistent positioning, or specific placement for any particular paid search keyword, phrase or search term. Client acknowledges that SmartMedia.Agency ’s past performance is not indicative of any future results client may experience.
- Client acknowledges that advertising campaigns may be subject to the individual advertising network’s policies and procedures. Changes to these policies may require added resources employed by SmartMedia.Agency to adhere to these changes. The Client may be charged an additional fee for making these updates, based on the hourly rate of $150 per hour.
- Client acknowledges that any advertising networks, search engines, directories or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time.
- Client acknowledges that advertising networks may drop listings from its database for no apparent or predictable reason. SmartMedia.Agency shall re-submit resources to the advertising network based on the current policies of the search engine in question.
- SmartMedia.Agency will endeavor to make every effort to keep Client informed of any changes that SmartMedia.Agency is made aware of that may impact any of the Paid Media Campaign and Strategy and the execution thereof under this Agreement.
- Client acknowledges that SmartMedia.Agency cannot guarantee the exact placement of Client’s advertising; its availability or availability related to the funds in the Client’s account.
- Development of creative assets in support of Paid Media campaigns will be outlined specifically as a part of the deliverables in the SOW with SmartMedia.Agency.
- Any forecasting metrics provided to Client are estimates based on industry knowledge and advertising network projected forecasts.
- If SmartMedia.Agency executes Insertion Orders (IO) as it relates to advertising placements, each IO will list the type and amount of deliverables, the maximum amount of money to be spent, and the flight dates of advertising placements. SmartMedia.Agency cannot be held accountable for the exact delivery, inventory and/or performance of ad campaigns projected in an IO due to these being third party forecasts.
- When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects. SmartMedia.Agency cannot be held to reporting accuracy without the ability to install appropriate tagging on all digital assets.
- When reporting is delivered by SmartMedia.Agency, data is provided directly based on the ad network’s currently available data. If reporting is delivered before 30 days after the campaign has ended, all data may not have time to be collected and exact accuracy can be affected.
- Pre-payment for media/liability for payment. Where Client has engaged SmartMedia.Agency to procure media or advertising on its behalf (e.g., including but not limited to print, radio, television, digital), and Client is not paying for the media/advertising directly to the advertising/media vendor, SmartMedia.Agency must receive payment for the media/advertising prior to the media/advertising running. (SmartMedia.Agency will typically issue an invoice for media budget and media management services the month before the media is scheduled to run.) If SmartMedia.Agency does not receive payment for both the media budget and the media management fees, it may, at its discretion, choose to cancel or pause the media until payment is received. If SmartMedia.Agency has not received payment for the media/advertising but nonetheless allows the media/advertising to run, Client will remain responsible to SmartMedia.Agency and/or the advertising/media vendor for payment of same, notwithstanding the existence of any insertion order or contract between SmartMedia.Agency and the advertising/media vendor. If an advertising/media vendor seeks payment from SmartMedia.Agency for media that Client has not paid SmartMedia.Agency for, Client agrees that it will execute any documents requested by SmartMedia.Agency and/or the media/advertising vendor to assume liability for payment.
- Early termination of media spend. If Client seeks to cancel media earlier than the date set forth in any media contract or insertion order, SmartMedia.Agency will use its best efforts to cancel same without penalty to Client. However, Client expressly understands and agrees that certain media/advertising vendors will not allow cancellations and/or will charge a cancellation fee or “short rate” for same. Client shall be responsible for those amounts to the extent they have not already been paid to SmartMedia.Agency. To the extent that SmartMedia.Agency has received payment from Client that will cover those amounts, Client shall nonetheless remain responsible for payment of SmartMedia.Agency ’s time in having to process the cancellations at the rate of $150/hour.
- Effect of termination of Agreement or SOW for media placement. If Client terminates a Service Agreement for media placement, SmartMedia.Agency will cancel all pending media unless otherwise agreed to in writing by the parties. If Client is indebted to SmartMedia.Agency for SmartMedia.Agency ’s services, SmartMedia.Agency reserves the right to offset that debt with any payments Client has prepaid to SmartMedia.Agency for media. Any amounts left over after full payment of SmartMedia.Agency’s outstanding fees (including time spent cancelling media) and fees still due to media/advertising vendors will not be refunded but may instead be used by Client for additional SmartMedia.Agency services and/or additional media placement.
- Video clients: SmartMedia.Agency may, but is not required to, retain or store video footage on behalf of Client unless specifically agreed to in the Service Agreement. If a video shoot is scheduled that Client must cancel, Client should provide at least 24 hours notice. Shoots cancelled with less than 24 hours notice will be subject to a day’s production fee.
- PR clients: While SmartMedia.Agency uses its best efforts to get a Client’s press release(s) published, Client acknowledges that the decision to accept a story remains with the publishing source and SmartMedia.Agency cannot therefore guarantee that a story or press release will be published or when it will be published.
- Client Content: Client Content is written or visual content that is provided by Client to SmartMedia.Agency for its performance of the deliverables. Client Content, including all pre-existing trademarks and copyright material, shall remain the sole property of Client, and Client shall be the sole owner of all rights in connection therewith. Client hereby grants to SmartMedia.Agency a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely regarding SmartMedia.Agency’s performance of the services and the production of the deliverables.
- Third Party Materials: Client shall not own any third party licensed commercial components or materials that are embedded in the deliverables provided to Client. The owners of these components shall retain ownership of these items in accordance with their Terms and Conditions, licensing agreements, or other applicable agreements. Upon request, SmartMedia.Agency shall provide Client with a listing of third party components used in the deliverables and the source(s) of such components.
- Designs/Written Copy: Upon completion of the deliverables and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, SmartMedia.Agency shall assign to Client all ownership rights, including any copyrights, in any artwork, designs or written copy SmartMedia.Agency has created for Client as a part of its deliverables. At the request of Client and subject to a charge of $150/hour for assembling and preparing the materials for delivery, SmartMedia.Agency can provide a PSD (Photoshop file) or other file format of any design it has created for Client and/or HTML files. Should Client require any of the above to be placed on a disc (as opposed to delivered electronically), Client shall also be responsible for any applicable sales tax.
- Websites, web and mobile applications: Upon completion of the deliverables and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, SmartMedia.Agency shall assign to Client all ownership rights to the front end design of any website, web or mobile applications; however, SmartMedia.Agency will retain ownership of all custom back-end programming. Client, however, will be given a world-wide, royalty-free, non-exclusive, transferable, and perpetual right and license to the programming including, but not limited to, the right to modify, amend, and change the programming and create derivative works. If Client would like to have their website or web application “packaged” up and electronically delivered, this is an additional charge and Client will be billed $150/hour for same.
- Changing Hosts: Should Client wish to move its website/web application to another server/host from the original hosting source, Client will be provided access to port its site over; however, Client should be advised that sites may not port over to certain servers and/or the site may lose certain functionalities on certain servers. SmartMedia.Agency is not responsible for same and will still be responsible for the charge for packaging the website/web application. Should the site require additional programming to port to another server/host, or should SmartMedia.Agency be required to engage in extensive consulting to assist in the migration, SmartMedia.Agency will bill Client for same at the rate of $150 per hour. Should Client require any of the above to be placed on a disc (as opposed to delivered electronically), Client shall also be responsible for any applicable sales tax.
Term and Termination: Unless otherwise specified in the Service Agreement, the Service Agreement between Client and SmartMedia.Agency shall be effective as of the date that Client executes the Service Agreement and shall continue in effect for the duration of the term. Once the term has been completed, the Service Agreement will continue on a month-to-month basis and may be terminated upon thirty (30) days notice. If no term is specified in the Service Agreement, the term shall be the latter of complete payment of the amounts due under that Agreement or until the contracted services have been completed. A Service Agreement may only be terminated prior to the end of a term as follows:
- Breach. Either party may terminate an SOW and/or this Agreement in the event of a material breach by the other party if such breach continues uncured for a period of thirty (30) calendar days after written notice of the breach.
- Either Party may, in its sole discretion, terminate this Agreement in the event the other party files for bankruptcy, or is subject to involuntary bankruptcy.
- Effect of Termination on Payment. In the event of Client’s termination of this Agreement and/or any SOW for claimed breach by SmartMedia.Agency, Client shall pay SmartMedia.Agency for all previously issued unpaid invoices, out-of-pocket expenses incurred by SmartMedia.Agency , as well as for services rendered up to the date of termination (such date being thirty (30) days after receipt of notification of the breach) that may or may not yet have been invoiced. If the payment schedule in the Service Agreement is milestone or project-based, rather than hourly or monthly fee-based, SmartMedia.Agency will determine the number of hours of work performed beyond the last completed (and paid for) milestone or the number of hours expended toward completion of the project beyond what has already been paid for by Client and will invoice Client at the rate of $150/hour for those hours. SmartMedia.Agency shall provide the Client with an invoice within thirty (30) days of the effective date of the termination. The client shall pay the invoice within fourteen (14) days of receipt. Such payment shall not affect SmartMedia.Agency ’s right to pursue other potential damages relating to the client’s termination.
- Survival of Provisions. Notwithstanding the foregoing, the portions of this Agreement relating to Taxes, Indemnity, Warranties, Limitation of Liability, Governing Law and Venue, Force Majeure, Waiver, and Counterparts shall survive termination of this Agreement.
- Taxes: Client will pay, reimburse, and/or hold SmartMedia.Agency harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and duties (other than as related to SmartMedia.Agency’s income), whether international, national, state, or local (however designated), which are levied or imposed by reason of the performance of the deliverables.
- Payment: Unless otherwise set forth in the Service Agreement, payment will be due upon receipt of the invoice. Unless otherwise set forth in the Service Agreement, all ongoing monthly program costs will be billed on the first day of the month for that month’s services. Quarterly or monthly website hosting costs will be billed the month prior to the start of the quarter. Billing for media spends will be on the first of the month in the month prior to when the spend is to occur. In the case where Client has terminated a Service Agreement involving recurring monthly program costs or a marketing retainer, Client will be billed for the full month of services if the termination date occurs after the first of the month (e.g., Client gives notice on January 15th of desire to terminate; Client will be billed for January and February due to the 30-day notice period). Client will not be refunded for pre-paid hosting fees if Client terminates the Service Agreement. All payments made to SmartMedia.Agency shall be in U.S. Dollars in the form of company check, cashier’s check, or electronic wire transfer. Payments made by credit card shall be subject to a 3% processing fee. Payments not made within 60 days of the date of invoice may be subject to late charges equal to the lesser of i) one and one-half percent (1.5%) per month of the overdue amount; or ii) the maximum amount permitted under applicable law. If Client fails to timely pay the amounts due during the development or delivery of the deliverables pursuant to this paragraph and/or the payment terms set forth in the Services Agreement, SmartMedia.Agency retains the right to stop work and/or suspend services after five (5) days’ written notice (email communication sufficient) until payment is made. Further, SmartMedia.Agency shall retain full ownership over the deliverables (whether completed or not) until full payment is received. Client shall reimburse SmartMedia.Agency for travel and any related expenses. SmartMedia.Agency will advise Client if travel expenses are expected to exceed $100.
- Indemnity: Client agrees to indemnify and hold harmless SmartMedia.Agency, its owners and employees from and against all allegations, claims, actions, suits, demands, damages, liabilities, obligations, losses, settlements, judgments, costs and expenses (including without limitation attorneys’ fees and costs) which arise out of, relate to SmartMedia.Agency’s use of materials furnished by Client (including but not limited to, logos, slogans, trademarks, written content, photographs, video, music and fonts). Information or data obtained by us from you to substantiate claims made in marketing deliverables shall also be deemed to be “materials furnished by you.” Such claims may include claims for invasion of privacy, defamation, patent, trademark copyright or other intellectual property claims. Additionally, Client agrees to indemnify and hold harmless SmartMedia.Agency, its owners and employees against any and all allegations, claims, actions, suits, demands, damages, liabilities, obligations, losses, settlements, judgments, costs and expenses (including without limitation attorneys’ fees and costs) which arise out of, relate to business ideas, innovations, concepts, websites, web-based applications and the like that Client has generated and has asked SmartMedia.Agency to develop or implement. For example, if you have an idea for a web application, we develop it, and it is determined that the application’s functionality violates another company’s patent, you will indemnify SmartMedia.Agency for any claims instituted by the third party. SmartMedia.Agency does not take responsibility for determining whether your business ideas, business plans, concepts or innovations may interfere with another party’s rights or are otherwise in compliance with applicable law. You warrant that any business ideas, business plans, concepts or innovations that you have presented to SmartMedia.Agency and asked SmartMedia.Agency to create deliverables for are compliant with applicable federal, state and local laws, rules and regulations.
- Limitation of Liability: IN NO EVENT SHALL SMARTMEDIA.AGENCY BE LIABLE TO CLIENT FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA OR LOSSES AS A RESULT OF DISCLOSURE OF USER CONTENT OR OTHER DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SMARTMEDIA.AGENCY ’S PRODUCTS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SMARTMEDIA.AGENCY EXCEED ANY COMPENSATION PAID BY YOU TO SMARTMEDIA.AGENCY FOR ITS PRODUCTS OR SERVICES.
- Disclaimer of Warranty: THE PRODUCTS AND SERVICES ARE PROVIDED on an “AS IS” and “AS AVAILABLE” BASIS AND SMARTMEDIA.AGENCY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SmartMedia.Agency strives to exceed Client expectations, however, since marketing results can be influenced by various external forces outside of SmartMedia.Agency ’s control, SmartMedia.Agency cannot guarantee specific results or return on investment. Notwithstanding the foregoing, if the deliverables to be provided to Client under the Service Agreement were custom web application development, SmartMedia.Agency does warrant that any programming code developed by SmartMedia.Agency as part of its deliverables shall be free of ‘bugs’ for 90 days after the go live date. For purposes of this paragraph, ‘bugs’ are defined as programming errors that make the application unable to function in a manner defined by the Service Agreement and does not include upgrades or enhancements to functionality or graphic design changes. Further, SmartMedia.Agency shall have no responsibility to fix any ‘bugs’ that arise after the go live date where: 1) the Client or Client’s designees have gone into the back-end code and made changes; or 2) a third party component that has been made a part of the deliverables has been updated or changed by the third party component owner after the go live date. By way of example, if a web application contains a third party content management system, such as Umbraco, Drupal, Joomla or WordPress, and changes to that system result in the inability of the SmartMedia.Agency code to properly interact with the system, SmartMedia.Agency shall not be responsible for fixing same. Additional programming work may be requested by Client under separate contract at then current billing rates. Unless otherwise specifically noted in the Service Agreement, SmartMedia.Agency does not warrant that any deliverables, including but not limited to websites, created for Client are accessible, Section 508 or ADA-compliant. Development of an accessible website must be specifically agreed to in the Service Agreement.
- Governing Law/Venue: This Agreement shall be governed by and construed in accordance with the internal laws of the Island of Mauritius and not the principles of conflicts of law thereof. The Parties agree that the venue for any action arising out of this Agreement will be the COMMERCIAL COURTS OF MAURITIUS.
- Miscellaneous: If any portion of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity or enforceability of any remaining provisions or the provisions in the Services Agreement. The Service Agreement entered into between the parties and applicable change orders, together with these Terms, constitutes the entire agreement between the parties as it pertains to the matters in that Service Agreement and supersedes any oral discussions, written communications or draft agreements that occurred prior to execution of that Service Agreement. Notwithstanding the foregoing, to the extent that SmartMedia.Agency and Client have executed more than one Service Agreement throughout their relationship, each of those Service Agreements, along with their corresponding Terms, shall be treated separately and remain in full force and effect according to their individual terms.