This Marketing Client & Agency Agreement (“Agreement”) is entered into as of the date this agreement is signed (“Effective Date”) by and between Option One Marketing (DBA Agency Elevation), a Wisconsin limited liability company (“Agency”) and the client under this Agreement (“Client”). Both Agency and you may be referred to herein as a "Party," and collectively as the "Parties." BY PURCHASING SERVICES FROM AGENCY, CLIENT AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. Referral Payments
Client is aware that there is an opportunity to lower the monthly cost paid to Agency by referring new clients to Agency. If Client agrees, Client will attempt (in good faith, but not required) to introduce new potential clients to Agency. It is at Agency’s discretion whether or not those new potential clients are a fit for Agency’s services. Client will receive the equivalent of a 10% payment per month of the new client’s cost (for the life of the referral client) should that new client work with Agency.
2. Fees and Expenses
Client agrees to pay the monthly fee. The first payment must be paid concurrently with the execution of this Agreement and will be charged to the credit card on file or be due via ACH transfer on the same date of every month.
Any services requested by Client outside the scope of SEO, PPC, Facebook Ads, or TikTok Ads require additional fees. Client agrees to pay all such fees and costs at the time services are rendered and the expenses incurred, as invoiced by Agency.
Agency reserves the right to require prepayment or an advanced deposit for such additional charges or expenses as it deems appropriate. Client shall be responsible for all state and federal sales and use taxes, property or excise taxes associated with Client’s purchase or use of Agency’s services.
The initial Term of this Agreement is one (1) month starting from the execution of this Agreement. Thereafter, the Agreement will automatically renew for every month until terminated for any reason by one of the Parties. If Client elects to terminate this Agreement, Client must provide the Agency with thirty (30) days notice of termination in writing, and Client must pay the Agency for thirty (30) more days worth of all past thirty (30) day charges.
4. No Guarantee of a Specific Result
Regardless of any perceived representation to the contrary, Agency in no way guarantees a specific result for Client. Client understands and agrees that they are paying the Agency as a service to generate results, but that results are never guaranteed. It is understood and agreed to that the Agency has no control over Google, Facebook, TikTok, or other advertising platforms and if they decide to make changes to their advertising platform.
The Parties agree not to disparage, slander, or defame, directly or indirectly, each other or its principals, agents, officers, owners, directors or employees whether during the Term or after termination of this Agreement. Further, this term shall apply, without limitation, to all forms of social media and online forums. Nothing herein shall prevent any Party from making any truthful statement in connection with any legal proceedings or with any investigation by any governmental authority.
6. Limitation of Liability
Agency does not make any warranties, whether expressed or implied, regarding the performance of the services it provides. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH: (a) AGENCY SHALL HAVE NO LIABILITY FOR ANY SERVICES PROVIDED, INCLUDING ANY LIABILITY FOR NEGLIGENCE; (b) AGENCY MAKES AND CLIENT RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION; AND (c) AGENCY SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Subject to the foregoing and notwithstanding anything to the contrary elsewhere contained, in no event shall the maximum aggregate liability of the Agency in connection with this Agreement exceed the monthly fee paid by the Client in the one (1) month preceding the claim. IN NO EVENT SHALL AGENCY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES OF ANY NATURE IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, BUSINESS INFORMATION OR DATA STORAGE, GOODWILL, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF AGENCY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Force Majeure
Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reasons beyond its reasonable control, including any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications or utilities, or any act or failure to act by the other party or such other party’s officers, employees, agents or contractors; provided, however, that lack of funds shall not be deemed to be a reason beyond a party’s reasonable control.
In the event that Client fails to pay any fees or charges under this Agreement, Agency may immediately pause or discontinue this Agreement, among other available remedies, until the Client cures its default.
9. Governing Law
This Agreement shall be governed by the laws of the State of Wisconsin without regard to any choice-of-law provisions.
10. Attorney’s Fees
In any litigation, arbitration or dispute arising under or relating to this Agreement, each Party shall be entitled to recover reasonable attorney’s fees and litigation costs.
11. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter addressed herein and supersedes all prior communications, agreements or understandings, written or oral, between the Parties. Any amendment to this Agreement must be in writing and signed by both Parties.
The provisions of this Agreement are severable, and if any provision of this Agreement is determined to be invalid or unenforceable under any controlling law, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions of this Agreement.
13. Assignment of Rights
This Agreement shall be binding upon and inure to the benefit of any and all heirs, successors and assigns of each of the parties hereto. Agency shall have the right to assign all or any portion of its rights under this Agreement to a third-party assignee without the consent of Client, provided that the Agency shall provide written notice of such assignment to Client contemporaneously with, or promptly following any such assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by Client without the prior written consent of Agency.
14. Solicitation of Employees and Customers
It is understood and agreed to by Agency that no attempt to solicit Client’s employees and customers shall be made. At no time shall Agency specifically solicit online, offline, or any other combination Client’s customers, leads, or website traffic for the benefit of any other business or government whether or not said business or government is a customer of Agency. Additionally, Agency shall never provide to any other business or government, unless mandated by law, a list of individuals or companies as having any association to Client whereby Client’s customers could be specifically solicited.