[Important: This agreement governs the products and services you purchase from us, so you should read it.]
This Marketing Services Agreement (the “Agreement”) is automatically made and entered into by and between the purchaser of any product or service offered or specified on this website (you, the “Client”) and Adentities, LLC (“Agency”), collectively referred to as the “Parties,” at the time such product or service is requested by Client, regardless of the method of such request.
The Parties agree as follows:
1. SERVICES: Client shall engage Agency for the marketing and advertising services (“The Services”) described and requested elsewhere on this website and/or by communications between the parties.
2. TERM OF SERVICES: Unless otherwise agreed to by the parties, The Services shall commence upon the original date of order by Client, for an initial minimum term of 12 months unless specified otherwise as defined in a signed and executed proposal (“Initial Term”), and the term shall renew automatically for the same duration as the Initial Term at the end of the previous term, in perpetuity, the campaign is terminated by either party with at least 30 days’ written notice prior to the expiration of the current term.
3. BILLING, REFUND POLICY & CREDIT CARD CHARGEBACKS:
a. Refund Policy. Any and all purchases and payments made by Client to Agency are governed by a strict no-refund policy with no exceptions whatsoever under any circumstances. The reasons for this include, but are not limited to the fact that Agency, at the time of contract engagement with Client, often immediately incurs service fulfillment-related expenses such as the purchase of various tools, services, time, and labor required in order to provide The Services to Client (collectively, “Fulfillment Expenses”). Agency frequently enter into no-refunds contracts with providers of these Fulfillment Expenses, meaning that any issuance of refunds would cause Agency unacceptable financial losses.
b. Credit Card Chargebacks. Client agrees that they may not, at any time and for any reason whatsoever, attempt a chargeback of any credit card payments made to Agency. In the case that Client attempts to chargeback a credit card payment made to Agency, Client understands and agrees that they will be liable for a penalty fee equal to 3 times the originally charges that were charged back, in addition to any and all expenses or losses incurred by Agency in its pursuit to defend and/or reverse the chargeback attempt, including but not limited to legal fees, time spent documenting and communicating about the matter with Client, banks, legal experts, etc.
c. Terms of Payment, Requirement for Valid Form of Payment On-File. Agency offers “Due Upon Receipt” Terms for all Client invoices with no grace period for accounts in arrears. Client agrees that they will maintain with Agency, at all times, a valid form of payment (e.g. credit card or bank information) that Client gives Agency permission to use for charges related to The Services. Such charges by Agency will be made in advance of services being rendered unless otherwise agreed between the parties in writing. Agency reserves the right to suspend or cancel The Services during any period where charges are owed or no valid form of payment for Client exists, until such time as a valid, chargeable form of payment has been provided by Client and verified by Agency as valid for the outstanding amount owed. Furthermore, Client agrees that Agency shall not be liable for any losses or damages of any kind whatsoever related to any downtime of services resulting from delayed payment of charges by Client, for any reason.
d. Penalty for Early Termination. Client understands that Agency incurs substantial fees and engages in substantial financial commitments when setting up The Services for Client, expenses that are amortized via monthly services fees that are paid across the initial minimum commitment term of a campaign. Furthermore, to provide The Services to Client, Agency frequently enters into long-term commitments with subcontractors and/or vendors to provide services over the minimum commitment period of the contract, and is therefore committed for that period. Additionally, it is expressly understood that the pricing offered by the Agency to the Client is contingent upon the Client’s commitment to fulfill the minimum contractual term as defined in this Agreement. As part of this condition, the Client may be eligible for special pricing discounts and/or bonuses which are directly associated with the duration of their contractual term. Any failure to meet the minimum contract period may affect the applicability of such discounts and/or bonuses. Due to the above considerations, any early termination of contract by Client not mutually agreed upon ahead of time in writing by both Agency and Client, and/or failure by Client to pay timely for services shall result in an immediate early termination penalty equal to the remaining monthly services fees due under the agreement. For example, if Client has 6 months remaining in their marketing services agreement for which Client pays $1500/mo USD in fixed fees, and early terminates wrongfully, Client shall owe the full remaining amount due to Agency of $1500 x 6 = $9000 USD and be billed for this amount immediately using the payment form on file. In the case of service agreements involving fees that are not fixed and may vary over the course of time (e.g. profit sharing percentage terms in Adentities Accelerator™ program agreements), the calculation for the remaining amount due will be as follows: The number of months (including partial months where applicable, rounded up to the nearest 1/2 month) remaining in the agreement multiplied times the last fee paid to Agency. For example, if Client was last billed $10,000 USD in the 6th month of an agreement with a 12-month initial minimum term, and Client wrongfully early terminates the agreement after 6 months, Client shall owe Agency of $10,000 (average fee amount paid to date per month) x 6 (number of months remaining in agreement term) = $60,000 USD and be billed for this amount immediately using the payment form on file. In the event that less than a single month under the profit-sharing portion of an agreement (after the evaluation period is complete, if any exists) has been completed, than the calculation for the last month’s fee shall be computed based on the total days of that month that were completed, with the remaining days assumed to be equal to the average of the completed days of that month and this calculation being used to project the remaining month’s figures.
e. Interest Charge Accrual for Amounts Owing. In the event that the payment form on file cannot be charged, Client will accrue an annual APR compounded interest rate of 18% (1.5% per month) for any amounts owed to Agency beginning in 7 days from the attempt to charge, and after 30 days from this date, Client may either be referred to collections and/or legal proceedings to collect the debt, and/or Agency may enact the provisions outlined in Section 3(f) below. Client shall be solely responsible for any and all expenses incurred by Agency in attempting to collect any debts owed by Client, in addition to any applicable interest charges.
f. Automatic Use of Payment Form(s) On File. We will automatically use your forms of payment on file (e.g. credit/debit card, EFT/bank account info, etc.) to purchase products and/or services according to the payment schedule specified in your agreed-upon services with us. These types of payments include, but are not limited to:
- Monthly Services and Renewable Product Licenses/Subscriptions. We will initiate payment in a reasonable amount of time after we receive this signed form for any applicable initial service setup fees, and then for your services and/or products according to the billing/subscription schedule outlined in your authorized proposal and/or invoice.
- Advertising Platform Ad Spend Charges. Your card will be setup under an account in your name and billed directly by the platform you are advertising on based on the monthly advertising spend budget you have specified for us to manage. While we are not responsible for the billing/charging actions or methods of these 3rd party companies (e.g. Facebook, Google, Microsoft, LinkedIn, etc.) and you should check with those companies’ websites for specific questions, they typically bill for ad spend in multiple, smaller amounts throughout the month as your account’s billing threshold is reached (this threshold can vary between platforms and accounts; e.g. every $25, $500, $750, etc. spent for traffic on their site). [Important: Please ensure that your card is able to accept charges for any ad spends we manage in relation to your services with us. If your card issuer/bank declines the payment, your advertising campaign will pause, which may have a detrimental effect on your campaign results.]
- Miscellaneous Consultative & Other Hourly Service Fees. We will use your payment information once per month for any billable hours (logged and billed to the closest half-hour/30 mins) that have accrued for services that go beyond the scope of any monthly services you are paying for with us. In some cases have been generated from email or phone requests from authorized parties at, or connected with, your business to our team.
- Cancellation Policy. You may request cancellation of your services with us at any time using this form on our site. We require thirty (30) days notice for cancellations of services, delivered electronically using our form above (other method of notice will not be considered valid for the purposes of calculating the actual termination of services date). Please keep in mind that some marketing services & campaigns carry minimum initial terms, and in those cases you will be responsible for payment of the remainder of the minimum initial billing term based on the original proposal or agreement you signed or the default billing & payment terms defined herein. If you cancel services prior to the end of your current term, any fees for the remainder of that term will be considered immediately due and payable and charged to your form of payment on file per the terms of Section 3(d) above. Agency reserves the sole and exclusive right to refuse or terminate existing services to anyone for any or no reason, unconditionally. In the event of our termination of services, Client will be given a minimum of twenty-four (24) hours’ notice of such termination. Please read the terms & conditions on that page for further information.
g. Security Interest and Lien for Unpaid Debts
1. Security Lien and Interest; Rights to File UCC-1 Financing Statement and International Equivalents. In the event that Client defaults on payment obligations under this Agreement (hereafter any such Client shall be referred to as “Debtor”), and/or prematurely terminates this Agreement prior to the end of the stipulated term, Agency shall enforce the remedies outlined in Section 3(d) above. In the event the remedies in Section 3(d) are not possible for any reason whatsoever (including but not limited to Agency’s inability to successfully charge Client’s form of payment on file), Agency shall be entitled, without limiting any other rights and remedies that may be available under this Agreement or by law, file financing statements, amendments, and continuation statements, inclusive of but not limited to a UCC-1 Financing Statement, in any jurisdiction it deems necessary to perfect and maintain the perfection of the Agency’s security interest. Such filings may be made with or without the signature of the Client/Debtor, and may include a description of collateral.
Client acknowledges and affirms that this Agreement is legally binding under the laws of the state of California, United States, and is additionally applicable to any and all foreign jurisdictions including, but not limited to, Canada, Australia, and wherever the Client may conduct operations. Client further agrees to complete any necessary paperwork and undertake any actions required by local law to enact the Agency’s rights under this Agreement in such foreign jurisdictions, subject to obtaining appropriate local legal counsel. Client accepts that, regardless of their place of residence or location of business, any breach or default of this Agreement may result in the Agency asserting its right to file a UCC-1 lien or its equivalent in the foreign jurisdiction(s) where such action is legally permitted.
In the event that the Client fails to make full and timely payment for services rendered by the Agency as outlined in this agreement, the Agency shall have the right to secure the unpaid debts by filing a Uniform Commercial Code (UCC-1) financing statement, also referred to as a lien, against any and all of the Client’s current or future assets, as permitted by applicable law. The Agency’s right to secure the unpaid debts through this lien shall be effective as of the date of the UCC-1 filing.
2. Scope of Security Interest: The lien created through the UCC-1 filing shall encompass any and all assets, tangible or intangible, owned by the Debtor and shall include, but is not limited to, real property, personal property, accounts receivable, inventory, equipment, intellectual property rights, bank accounts, and any other assets owned by the Debtor. The Agency shall have a security interest in all such assets to secure the unpaid debts owed by the Debtor to the Agency.
3. Notice and Documentation: Prior to filing the UCC-1 financing statement, the Agency shall provide written notice to the Debtor regarding the unpaid debts and the intention to secure those debts through a lien. This notice shall allow the Debtor a reasonable period, as specified by applicable law, to rectify the unpaid debts. If the debts remain unpaid following the notice period, the Agency shall proceed with the UCC-1 filing. The Agency shall keep accurate records of all communications, notices, and documents related to this section.
4. Release of Lien: Upon full and complete payment of the outstanding debts owed by the Debtor to the Agency, the Agency shall release the lien by filing the necessary documents to terminate the UCC-1 financing statement. The Debtor shall bear any costs associated with the release of the lien, including any filing fees or administrative expenses.
We strive to maintain full transparency regarding our billing policies and practices. If you have any questions at all, please contact us at accounting (at) adentities (dot) com.
4. INDEPENDENT CONTRACTOR: It is understood that Agency is an independent contractor and not an employee of Client.
5. ASSIGNMENT OF SPECIFIC RIGHTS: Client agrees to provide, timely, the following to Agency in order to facilitate Agency’s fulfillment of The Services:
a. FTP, website hosting control panel, domain registrar, e-commerce, and other back-end access to Client’s website and website-related tools and services.
b. Permission to communicate, on Client’s behalf, directly with any third parties related to or involved with Client’s online marketing (e.g., web designer, web developer, software developers or vendors, etc.).
c. Full access to existing website traffic analysis and statistics accounts and services related to Client’s digital and marketing assets (such as Google Analytics, etc.).
d. Permission to use Client’s official email address at client’s email domain for the purposes of tasks such as claiming business listings, requesting links, and other online-marketing related tasks as deemed necessary by Agency to fulfill The Services.
e. Client authorizes Agency’s use of all client’s logos, trademarks, Web site images, content etc., for use in providing the Services.
f. Any other reasonable access requested by Agency to Client’s online accounts, tools, or digital assets required for its fulfillment of The Services.
6. CONFIDENTIALITY: Agency acknowledges that it may have access to Client’s confidential and proprietary information. Such confidential information may include, without limitation: i) business and financial information, ii) business methods and practices, iii) technologies and technological strategies, iv) marketing strategies and v) other such information as Client may designate as confidential (“Confidential Information”). Agency agrees to not disclose to any other person (unless required by law) or use for personal gain any Confidential Information at any time during or after the term of this Agreement, unless Client grants express, written consent of such a disclosure. In addition, Agency will use its best efforts to prevent any such disclosure. Confidential information will not include information that is in the public domain.
7. OWNERSHIP OF ASSETS: Unless otherwise specified or agreed upon between the parties, Client is considered exclusive owner of any assets developed by them for Agency as special projects such as website and videos. However, Agency shall exclusively own all other digital assets it develops or generates within its own systems and accounts in connection with providing The Services, including but not limited to: ad campaign-related assets, ad campaign landing pages, lists on agency’s CRM and email systems, Facebook/Instagram/Google custom audiences, PPC remarketing lists, website forms, ad creative, proprietary website plugins, etc. Client shall retain any existing rights to its own assets that Agency utilizes in Client’s campaign (e.g., Client’s company logo, existing website content, etc.). No Services-related assets should be downloaded, copied, or otherwise duplicated by Client without Agency’s prior written consent. In the event that the Services are terminated for any reason, Client forfeits its usage of these digital assets immediately upon the Termination Date.
8. CONTINUING OBLIGATIONS: Notwithstanding the termination of this Agreement for any reason, the provisions of paragraph 5 and 6 of this Agreement will continue in full force and effect following any termination of this Agreement.
9. BINDING EFFECT: The covenants and conditions contained in this Agreement shall apply to and bind the Parties and the heirs, legal representatives, successors and permitted assigns of the Parties.
10. CUMULATIVE RIGHTS: The Parties’ rights under this Agreement are cumulative, and shall not be construed as exclusive of each other unless otherwise required by law.
11. WAIVER: The failure of either party to enforce any provisions of this Agreement shall not be deemed a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
12. SEVERABILITY: If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
13. TERMINATION: This Agreement may be terminated by either party in the event that the other party fails to perform its duties or materially breaches any obligation in this Agreement.
14. CANCELLATION: It is agreed that both the Client and Agency are entitled to cancel this agreement at any time after the expiration of the Initial Term without given reason therefore. However, such cancellation shall only become effective on the expiration of 90 (ninety) days from midnight of the day on which notice of the cancellation is issued via the Services Cancellation Form on this website (“Termination Date”). [See also Section 3(d) above regarding important information about non-mutual early termination by Client.]
To ensure that Agency has a clear understanding with regards to the technical details surrounding cancellation and the exact services being terminated and/or retained by Client in the event of cancellation of The Services, requests for cancellation of services by Client shall only be considered valid when delivered by Client in writing, e-mail communication, or using the Service Cancellation Form found elsewhere on this website.
15. 30-Day Remedy Period for Breach of Agreement
In the event of any breach of this Agreement by either the Agency or the Client (collectively referred to as “Parties”), the non-breaching Party shall provide the breaching Party with written notice, detailing the nature of the alleged breach. Upon receipt of such notice, the breaching Party shall have a period of thirty (30) calendar days to cure, rectify, or otherwise resolve the breach to the satisfaction of the non-breaching Party.
If the breaching Party fails to cure the breach within this 30-day remedy period or fails to commence reasonable steps towards curing the breach if the nature of the breach is such that it cannot be cured within 30 days, the non-breaching Party may then proceed to exercise any and all rights and remedies available under this Agreement, or at law or in equity. This may include termination of the Agreement, pursuing a claim for damages, or any other applicable actions.
Both Parties agree that the provision of the 30-day remedy period does not waive or diminish the non-breaching Party’s right to claim damages for any loss or damage sustained due to the breach, nor does it negate the rights of the non-breaching Party to take action under this Agreement or applicable law should the breach remain uncured after the remedy period.
This Section shall apply to all breaches of this Agreement, irrespective of their nature or severity, unless explicitly stated otherwise within this Agreement. This 30-day remedy provision shall apply under the laws of the state of California, United States, and, as applicable, shall be enforceable in foreign jurisdictions including, but not limited to, Canada, Australia, and other locations where the Parties conduct operations.
16. ASSIGNMENT: Either party shall have the right to assign or transfer any duties, rights or obligations due hereunder without the express written consent of the other party.
17. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. This Agreement may be modified in writing, and any such modifications must be signed by both Client and Agency.
a. Form of Notice. All notices and other communications between the parties must be executed in writing, including digital communications via website form submission or electronic mail.
b. Method of Notice. With the exception of notices related to the cancellation of services as specified in (14) above, the parties shall give all notices and communications between the parties by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party’s address specified in this agreement, or to the address that a party has notified to be that party’s address for the purposes of this section.
c. Receipt of Notice. A notice given under this Agreement will be effective on
i. the other party’s receipt of it,
ii. or if mailed, on the earlier of the other party’s receipt of it and the [fifth] Business Day after mailing it.
d. Agency’s address:
Email: team [at] adentities.com [dot] com
19. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of California and the County of Sonoma County.
20. PROPRIETARY SOFTWARE AND DATA: Certain data, website plugins, and other software that Agency employs on Client’s behalf to fulfill The Services may are proprietary and will be removed upon termination of this Agreement.
Client hereby agrees and understands that submitting any payment or form governed by the terms of this document indicates that they have read, understand, and agree to the terms of this Agreement in their entirety.
WE MAY MODIFY, UPDATE OR DELETE PROVISIONS OF THIS AGREEMENT OVER TIME BY POSTING CHANGES HERE ON OUR WEBSITE. CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT THEY ARE SOLELY RESPONSIBLE FOR PERIODICALLY REVIEWING AND REMAINING UP TO DATE WITH REGARDS TO THESE TERMS AND PROVISIONS, AND THAT THEY WILL REGULARLY CHECK FOR UPDATES TO THIS PAGE CONTAINING THESE TERMS AND CONDITIONS. FAILURE TO PROVIDE A WRITTEN NOTIFICATION OF DISPUTE AS TO THE NATURE OF ANY SUCH CHANGES WITHIN 14 (FOURTEEN) DAYS, AND/OR CONTINUED USE OF OUR DATA & MARKETING SERVICES AFTER ANY CHANGES, SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES TO THESE TERMS AND PROVISIONS.