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INLocal Marketing Digital Marketing Master Service Agreement

INLocal Marketing
100 SW Main St.
Portland OR. 97204
(503) 853-8713

Digital Marketing Master Service Agreement

This Master Services Agreement, executed on the date indicated on the signature blocks below, sets forth the terms and conditions which shall govern the relationship between [INLocal Marketing], (Hereafter referred to as the “COMPANY”), and the CLIENT, who is identified in detail in the signature block below, in connection with the marketing services provided to CLIENT by COMPANY. This Master Services Agreement is designed to be used with insertion orders that will be executed in the future.  The Master Services Agreement and future insertion orders will represent the complete and entire expression of the agreement between the parties and shall supersede any and all other agreements, whether verbal or written, between the parties.

I. Services.

(A)  Nature of the Agreement.

  1. CLIENT agrees to accept and pay for, and COMPANY agrees to provide, the marketing services identified and outlined in this Master Services Agreement.
  2. Services may be described further in an insertion order, estimate or invoice (collectively “Insertion Order”), each of which shall be incorporated herein by reference and, together with this Master Services Agreement, shall collectively be referred to as the “Agreement”. In any instance where CLIENT is an agency contracting on behalf of a CLIENT, or CLIENT is selling COMPANY’S deliverables or services to a third party, any reference to “CLIENT” shall refer jointly to CLIENT and the third party to whom CLIENT has sold the deliverables or services.
  3. If a compliance issue arises related to the deployment of any Campaign by CLIENT, COMPANY, in consultation with CLIENT, shall determine whether or not the deployment complies with all applicable Laws.

(B) COMPANY Marketing Services. COMPANY shall provide CLIENT with marketing services (the “Services”) as follows:

  1. At the CLIENT’S request, COMPANY shall undertake a Google Ads PPC Marketing campaign (a “Campaign”), whereby INLocal Marketing, a UMBRELLA Local Member, will utilize a contracted 3rd party provider (Vendor) to deliver the services. (see PPC Insertion Order)
  2. At the CLIENT’S request, COMPANY will modify an existing website design (https://www.lionirondoors.com/) according to the CLIENT's desired specifications. COMPANY will work to create a design, look, and feel for the website that is acceptable to the CLIENT and work towards creating a user experience that displays quality, instills confidence, and effectively communicates the CLIENT's products, services, and marketing message. (see Website Design Insertion Order)
  3. At the CLIENT’S request, COMPANY shall undertake a Search Engine Optimization (SEO) campaign.

CLIENT must provide COMPANY with written notice of any requested change to the specifications (artwork, graphics, text etc.) before Campaign deployment.  CLIENT may not make changes to or terminate a Campaign once a Campaign has begun to deploy.

(C)  CLIENT Compliance Obligations.

  1. CLIENT represents and warrants that: (a) it is in good standing in the state of CLIENT’s organization; (b) it is qualified to do business in each state in which CLIENT provides products and services and has in effect and good standing all licenses and permits required to provide such products and services; (c) it will not violate the rights of any third party including, without limitation, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary/intellectual property right; (d) it’s products or services will not target consumers under the age of thirteen (13); (e) it owns and/or has any and all rights, title, and interest in and to the Creative Materials, and to permit the use of the Creative Materials by COMPANY as contemplated by this Agreement and the applicable Insertion Orders; (f) the CLIENT’s website and/or creative content shall not contain any material that can be considered, defamatory, libelous, pornographic, obscene, hate-filled, or is otherwise considered objectionable; and (g) no portion of CLIENT’s website and/or Creative Materials is/are the subject of any ongoing investigation by any local, state, or federal regulatory or quasi-regulatory authorities.
  2. CLIENT shall provide COMPANY with an internet-based opt-out mechanism, such as a functioning e-mail address or opt-out URL, as well as an address for postal opt-outs.
  3. CLIENT is solely responsible for ensuring that any creative materials it furnishes to COMPANY comply with all local, state and federal laws, rules and regulations. Creative materials includes any and all e-mail addresses and header information (e.g., “From” and “Subject” lines), supplied by CLIENT.  CLIENT is solely responsible for analyzing all content, creative materials, text, images, subject lines, and advertisements it provides to COMPANY to ensure compliance with all federal, state/provincial, and local laws and regulations. CLIENT shall be responsible for all costs, liens, and penalties caused by its failure to comply with all laws, codes, permit requirements, rules, orders, judgments, ordinances, or provisions or any federal, state, or local government authority.

CLIENT understands that federal, state, and local laws vary in connection with advertising, offering, sale, and provision of products and services, especially those that require heightened diligence, and accepts sole responsibility as provided in this Agreement. CLIENT is solely responsible for fulfilling all obligations, promises, offers, or inferences advertised or contained in all content, creative materials, text, images, subject lines, and emails.  CLIENT further understands and agrees COMPANY is an internet user publishing content created by others in the performance

II. Payments and Credit.

(A)  CLIENT shall pay COMPANY in accordance with the payment provisions identified in each specific Insertion Order.

(B) Full payments shall be rendered to COMPANY by the CLIENT before services are provided.

(C) If a prepayment or deposit has been made, all deposits received are earned upon receipt and are non-refundable.

(D) If the CLIENT intends to pause and/or terminate an approved Campaign, the COMPANY is under no obligation to refund the CLIENT.

(E) If a cancellation request is submitted, the CLIENT agrees to pay for any expenses incurred and/or services already rendered prior to such cancellation request.

III.  Term/Termination.

Upon termination or expiration of this Agreement for any reason: (a) CLIENT shall pay COMPANY all amounts then due and owing as of the termination, and (b) any and all “Confidential Information” or proprietary information of either party that is in the other party’s possession or control must be immediately returned or destroyed.  Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, and any accrued but unpaid payment obligations, shall survive and remain in effect in accordance with their terms.

IV. Warranty.

EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN, THE SERVICES PROVIDED BY COMPANY PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND “AS AVAILABLE” AND NO REPRESENTATIONS OR WARRANTIES ARE MADE THAT THE SERVICES WILL PROVIDE ANY PARTICULAR RESULTS. THE SOLE AND EXCLUSIVE WARRANTY UNDER THIS AGREEMENT IS COMPANY’S WARRANTY OF NON-INFRINGEMENT upon any third party intellectual property WITH RESPECT TO ANY CREATIVE MATERIALS SUPPLIED SOLELY BY COMPANY. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, OF ANY KIND, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE OF THIS AGREEMENT. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  IT IS SPECIFICALLY UNDERSTOOD THAT COMPANY DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICES PROVIDED WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE.  NEITHER COMPANY NOR ITS THIRD PARTY SUPPLIERS SHALL BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA, LOSS OF PRIVACY, DAMAGES TO THIRD PARTY EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING SHALL APPLY WHETHER ANY CLAIMS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE OR OTHERWISE.

V. Limitation of Liability.

CLIENT ACKNOWLEDGES AND AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY, REGARDLESS OF CLIENT’S THEORY OF LIABILITY OUTSIDE OF BREACH OF CONTRACT, SHALL BE THE RECOVERY OF NO MORE THAN THE AMOUNT PAID BY CLIENT TO COMPANY UNDER THE SPECIFIC INSERTION ORDER UNDER WHICH CLIENT’S CLAIM AROSE. COMPANY MAY TENDER SUCH AMOUNT TO CLIENT IN AN OFFER OF JUDGMENT AND OBSOLVE ANY FURTHER LIABILITY.

VI. Representations.

Each party represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into this agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (b) the execution of the Agreement by it and the performance of its obligations and duties do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation or each party, enforceable against each party in accordance with its terms; and (d) it will comply with all applicable federal and state laws, rules, and regulations applicable to its performance under the Agreement.

VII. Indemnification.

(A)  CLIENT shall indemnify, defend and hold harmless COMPANY, its subsidiaries, affiliates, directors, officers, employees, agents, successors, vendors, partners and assigns from and against any and all fines, suits, claims, demands, penalties, liabilities, costs, expenses, losses, settlements, judgments, awards, and actions of whatever kind or nature, including attorney’s fees and costs (and costs and fees on appeal), and damages of any kind that may at any time be incurred by any of them by reason of any claims, suits, administrative proceedings, actions, arbitrations or criminal investigations arising from or related to: (1) breach of any of its representations or warranties or covenants contained in this Agreement; (2) all claims arising out of or related to Creative Materials and Advertisements approved by CLIENT; (3) failure by CLIENT to meet its obligations or promises provided or implied or contained in the Creative Materials and Advertisements; and (4) violation of any applicable law, rule, code or regulation related to the content or nature of CLIENT’s campaign caused by CLIENT.

(B)  COMPANY shall indemnify, defend and hold harmless CLIENT, its subsidiaries, affiliates, directors, officers, employees, agents, successors, agents, vendors, partners and assigns from and against any and all fines, suits, claims, demands, penalties, liabilities, costs, expenses, losses, settlements, judgments, awards, and actions of whatever kind or nature, including attorney’s fees and costs (and costs and fees on appeal), and damages of any kind that may at any time be incurred by any of them by reason of any claims, suits, administrative proceedings, actions, arbitrations or criminal investigations arising from or related to: (1) breach of any of COMPANY’s representations or warranties or covenants contained in this Agreement; (2) all claims arising out of or related to Creative Materials and Advertisements supplied solely by COMPANY; and (3) violation of any applicable law, rule, code or regulation related to the content or nature of CLIENT’s campaign caused solely by COMPANY.

(C)  If any action is brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (1) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party‘s expense in connection with the defense or settlement of any such claim; and (2) be entitled to participate at its own expense in the defense of any such claim.  The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim.  However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party‘s rights or interests without the prior written consent of the Indemnified Party.

(D)  Unauthorized Use. CLIENT agrees that any unauthorized and/or unlawful use of the Services would result in irreparable injury to COMPANY for which monetary damages would be inadequate.  Unauthorized use includes, without limitation, CLIENT use of Services not paid for when due.

(E)  Entire Agreement; Construction; Modification. This Master Services Agreement and all applicable Insertion Orders represent the complete and entire expression of the agreement between the parties, and shall supersede all prior agreements, whether written or verbal.  The Agreement and all applicable Insertion Orders shall be construed as if both parties equally participated in its drafting, and thus shall not be construed against the drafter.  To the extent that anything in or associated with any Insertion Order is in conflict or inconsistent with this Master Service Agreement, the Insertion Order shall take precedence as to that specific Insertion Order only.  The Agreement and may be amended only by a written agreement executed by an authorized representative of each party.

(F)  Non-Waiver; Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.  If any provision contained in the Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and the remaining provisions of the Agreement will remain in full force and effect.

(G)  Status of the Parties. The parties are independent contractors.  There is no relationship of partnership, agency, employment, franchise, or joint venture between the parties.  Neither party has the authority to bind the other, or incur any obligation on its behalf.

(H)  License. CLIENT grants COMPANY a limited, royalty free, non-exclusive, perpetual license to use CLIENT’s, or CLIENT’s clients’ trademarks, service marks, creative materials and/or logos (collectively, the “Trademarks”) identified and approved by CLIENT to be associated with CLIENT’s (or CLIENT’s client) applicable Advertising Materials and Blended Media.  COMPANY’s right to use the Trademarks shall be limited solely to the Advertising Materials and Blended Media.  COMPANY acknowledges that, as and between COMPANY and the CLIENT, CLIENT is the owner of the Trademarks.

(I)  Force Majeure. Each party shall be excused from performance of its non-monetary obligations for any period and the time of any performance shall be extended as reasonably necessary under the circumstances, to the extent that such party is prevented from performing, in whole or in part, its obligations under this Agreement, as a result of acts of God, any governmental authority (except as defined below), war, civil disturbance, court order, labor dispute, third party non-performance (including the acts or omissions of any suppliers, agents or subcontractors) or any other cause beyond its reasonable control, including hurricanes, inclement weather, failures or fluctuations in electrical power, heat, light, air conditioning or telecommunication equipment or lines or any other equipment.  Such non-performance shall not be a default under this Agreement or grounds for termination of this Agreement unless such non-performance is not cured within sixty (60) days.

(J)  Notices.  All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing (including electronic transmission) and shall be (as elected by the person giving such notice) hand delivered by messenger or courier service, electronically transmitted, (via email) or mailed (airmail if international) by registered or certified mail (postage prepaid), return receipt requested.  The parties have exchanged updated current contact information, and shall provide relevant contact information set forth on each applicable Insertion Order, or to such other address as either party may designate by notice complying with the terms of this section.  Each such notice shall be deemed delivered (a) on the date delivered if by personal delivery; and (b) on the date upon which the return receipt is signed or delivery is refused or the notice is designated by the postal authorities as not deliverable, as the case may be, if mailed.

(K)  Headings.  The inclusion of headings in this Agreement is for convenience of reference only and shall not affect the construction or interpretation hereof.

(L)  Electronic Signature.  CLIENT acknowledges and agrees that by signing by hand or by assenting to the terms hereof electronically that you are expressly agreeing to the terms of this Agreement.  CLIENT acknowledges and agrees that by accessing this Services Agreement via, without limitation, links made available within the COMPANY “Insertion Order,” that CLIENT expressly assents to the terms hereof electronically by clicking on the checkbox, the button labeled “I Agree” or such similar labels as may be designated by COMPANY to accept this Services Agreement.  CLIENT acknowledges and agrees that by doing so, it is affixing its electronic signature, it is submitting a legally binding electronic signature and it is entering into a legally binding contract.  CLIENT acknowledges that CLIENT’s electronic submissions constitute CLIENT’s agreement and intent to be bound by the Services Agreement.  Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, CLIENT HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY COMPANY.  Further, CLIENT hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.

(M)  Violation of Law. Notwithstanding any other provision to the contrary contained in this Master Services Agreement or related Insertion Order, COMPANY retains the right to suspend or reject any Campaign, cease deployment and/or terminate services to CLIENT in the event COMPANY discovers CLIENT’s Campaign(s) violate applicable law.

(N)  Waiver of Jury Trial. THE PARTIES HAVE AGREED TO ARBITRATE THEIR DISPUTES.  EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE, LITIGATION OR COURT ACTION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, CROSSCLAIMS OR THIRD-PARTY CLAIMS) ARISING FROM OR RELATED TO THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THIS WAIVER IS A SIGNIFICANT CONSIDERATION TO, AND A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT EITHER PARTY WOULD NOT, IN THE EVENT OF SUCH LITIGATION; SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.  THE PARTIES FURTHER AGREE THAT THE INCLUSION OF CLAUSE SHALL NOT BE INTERPRETED TO WAIVE, DIMINISH OR CREATE AMBIGUITY WITH RESPECT TO THE PARTIES’ AGREEMENT TO ARBITRATE.

Signatures

IN WITNESS WHEREOF, CLIENT and COMPANY have each caused this instrument to be executed by their duly authorized representatives.

 

COMPANY (INLocal Marketing) Representative

Clear Signature
Date / Time

CLIENT Representative

Clear Signature
Date / Time