AGREEMENT FOR EMAIL MARKETING AND BRAND DEVELOPMENT SERVICES
This AGREEMENT FOR EMAIL MARKETING AND BRAND DEVELOPMENT SERVICES (“Agreement”), effective as of _____________, (“Effective Date”), is by and between Accelerate Marketing Group LLC an Indiana Company, with offices located at 449 E Brookville Rd. Fountaintown, IN 46130 (“AMG”), and _________________________________________, with offices located at ________________________________________________________(“Client”).
STATEMENT OF WORK (SOW)
AMG (“AMG”), in performance of the foregoing AGREEMENT FOR EMAIL MARKETING AND BRAND DEVELOPMENT SERVICES will perform the following services to __________________________ (“Client”).
Plan and design ongoing email marketing campaigns
Build and launch a custom email opt in funnel
Develop upgraded product inserts for current packaging of Clients branded products.
Refine Client’s email list management via client’s ESP (list segmentation)
Create a branded “opt in” website for Client, including information for customers who have purchased Client’s products.
Write seasonal email sequences to engage Client’s customers and keep them “warm”
Monitor Client’s email opt-ins
Manage Client’s Mailchimp (or other ESP) for best deliverability and lowest cost
Draft and implement best practices to measure and increase repeat purchases
Assist Client in developing automated SMS marketing campaigns.
Give Client access to PROMetrics Dashboard so Client can review results monthly
Assist Client in choosing ongoing strategies for establishing long-term consumer loyalty to Client’s brands, including but not limited to:
Ongoing IP development
Design and development of online brand
Direct consumer marketing
Increase Amazon sales, ranking, and reviews
Terms of Service Agreement
Email Marketing and Brand Development Services. AMG will perform services for Client in connection with the planning, provision, creation and/or placing of branding, research, advertising, email marketing, consulting, creative and/or digital services for Client, during the Term, as provided in the Statement of Work (“SOW”), incorporated herein by reference (such services are collectively referred to as “Services”). During the term of this agreement, Client may wish to assign additional projects, products, or services to AMG beyond the Services outlined in the SOW (“Out-of-Scope Assignments”). AMG agrees to accept such Out-of-Scope Assignments only upon a separate written agreement with Client regarding additional compensation to be paid to AMG and other relevant terms and conditions. Nothing in this Agreement will be deemed to require AMG to undertake any act or perform any services which in its good faith judgment would be misleading, false, libelous, unlawful, in breach of a contract, or otherwise prejudicial to Client’s or AMG’s interests.
Subcontractors. Client acknowledges that AMG may, in the rendition of the Services hereunder, engage third party suppliers and other vendors and subcontractors (“Subcontractors”) from time to time to provide certain services. AMG shall supervise such services and endeavor to guard against any loss to Client as the result of the failure of Subcontractors to properly execute their commitments, but AMG shall not be responsible for their failure, acts or omissions, except where such failure, acts or omissions are due to AMG’s negligence or willful misconduct. If Client enters into arrangements with third party vendors, subcontractors or suppliers regarding the provision of materials or services (“Preferred Suppliers”) and requests that AMG utilize such Preferred Suppliers in the discharge of AMG’s obligations hereunder, Client remains solely responsible for such Preferred Suppliers.
Client Approval of Materials. AMG shall submit to Client periodic samples for its approval of elements including, but not limited to, email copy, layouts, slogans, websites, artworks, graphic materials, and photography (collectively, “Materials”). Submission for prior approval of Materials will not be required to the extent that they are preliminary only. After the first approval, Client understands that the ongoing marketing emails will be built inside of their email service provider and the Client will have access to view them at any time and that no further approval will not be required by AMG to send marketing on the behalf of Client.
Services to Client’s Designees. Should Client request AMG to make purchases for or render services to any parent, subsidiary, or affiliate of Client (“Client Affiliate”), Client and such Client Affiliate shall be jointly and severally liable to AMG even though AMG may render invoices to, or in the name of, such Client Affiliate.
Fees, Payments, and Expenses.
Flat Monthly Fee. As compensation for the Services rendered pursuant to this Agreement, Client agrees to pay AMG a flat monthly fee of $1000 per month.
Payment Of Invoices. All invoices shall be paid by Client within fifteen (15) days of receipt. Payments not made within such time period shall 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. AMG may suspend all services on seven (7) days written notice until the amounts outstanding are paid in full.
Term and Termination.
Term. This Agreement will commence on the Effective Date and shall continue and will continue in full force and effect for 12 months of active service. At the expiration of the term, this agreement will automatically go into month to month status unless terminated.
Termination. Either party may terminate this Agreement after the one 12 month term discussed above by giving 48 hours written notice to the other party upon the occurrence of any of the following events:
Either party wishes to terminate the Agreement, for any reason, after the 12 month term has been completed.
The other party has or may be commencing a voluntary or involuntary bankruptcy, receivership or similar proceeding with respect to such other party.
Effect of Termination. Client shall pay AMG for all services rendered and work performed up to the expected 12 month term. Accordingly, AMG will send to Client a final bill for the balance of services upon early termination. Client shall pay the invoice within ten (10) days of receipt.
In case of client prepayment of annual or two year term (two year term extends service for an additional 6 months without payment) the term and monthly payout agreement in 9:c is nullified.
In case of option 9:c:i prepayment option creates locked-in pricing i.e. (price will not go up as list grows or if prices are raised)
All additional bonuses associated with webinar (such as new product launch emails), advance payment (free SMS collection), and early registration (within 72 hours of webinar broadcast date)
Return of Proprietary or Confidential Information. Within ten (10) days after the termination or expiration of this Agreement, each party shall return to the other all Proprietary or Confidential Information (defined below) of the other party (and any copies thereof) in the party's possession or, with the approval of the party, destroy all such Proprietary or Confidential Information.
Confidentiality. The parties agree to hold each other's Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; (iv) clients customer email lists for AMG marketing purposes via email service provider or(v)is subject to disclosure under court order or other lawful process. The parties agree not to make each other's Proprietary or Confidential Information available in any form to any third party or to use each other's Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party's Proprietary or Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, AMG and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.
Responsibilities; Representations and Warranties.
AMG represents and warrants that (i) the Services provided hereunder will be performed in a professional manner, and (ii) any software, hardware, websites, web-based or technology-related Services, email services (collective “Electronic Services”) will be free of material bugs or defects for thirty (30) days after delivery. Such warranty does not extend to any modification of Services by anyone other than AMG or its Subcontractors at the time of such modification, any abuse or misuse of Services by Client, or use of Services in an operating environment that differs materially from the specifications agreed to by the parties.
DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, ELECTRONIC SERVICES ARE PROVIDED on an “AS IS” and “AS AVAILABLE” basis, AND AMG EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
THIRD PARTY DISCLAIMER. AMG MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
Client Indemnity. Client shall indemnify, defend, and hold harmless AMG, its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, shareholders, and agents (each an “AMG Indemnitee”) from and against any and all Loss incurred by an AMG Indemnitee based upon or arising out of any third-party claim, CAN-SPAM Act, allegation, demand, suit, or proceeding (each, a “Claim”) made or brought against any AMG Indemnitee with respect to any advertising, branding, research or other products or services which AMG prepared or performed for Client hereunder to the extent that such Claim relates, in whole or substantial part, to: (i) the inaccuracy of any information supplied by Client or its agents to AMG including, without limitation, information concerning Client’s products and services, the products or services of Client’s competitors or Client’s product or service category; (ii) the use of any marketing, branding, research, advertising, packaging, trademark, software, hardware or other materials, or components thereof, furnished by Client or its agents to AMG to be included in any Materials or media placements; (iii) the use of any materials or data provided or created by AMG and changed by Client or its agents or used in a manner different from that agreed by the parties; (iv) risks or restrictions known by Client where Client nonetheless elected to proceed; (v) death, personal injury, or product liability (including health and safety) claims or actions arising from the use of Client’s products and services; (vi) the unauthorized or improper use of Materials or the Marks by Client, Client’s designees, licensees, distributors, franchisees or Client Affiliates; (vii) claims brought by Client’s employees for employment discrimination, other employment or labor disputes, breach of contract, personal injury or other civil law matters, or claims brought by those parties with whom Client has a contractual or supplier relationship; (viii) allegations of patent, trademark or trade dress infringement or any other violation of a patent, trademark or trade dress right; (ix) any material breach of the terms of this Agreement by, or any act of omission of, Client or its agents or employees relating to media commitments made by AMG pursuant to Client’s approval as provided for herein; and (x) the negligence, gross negligence, bad faith, or intentional or willful misconduct of Client or its employees, agents or Client Affiliates.
AMG Indemnity. Excluding claims covered by Section 11(a), AMG shall indemnify, defend, and hold harmless Client, the Client Affiliates, and their respective employees, members, managers, officers, directors, shareholders, and agents (each a “Client Indemnitee”) from and against any and all Loss incurred by a Client Indemnitee based upon or arising out of any Claim made or brought against Client arising out of the production or dissemination of materials produced hereunder that involve (i) libel, slander, defamation, copyright infringement, right of publicity and/or invasion of right of privacy arising out of work created by AMG and in final form (i.e., ready to be disseminated to the public); or (ii) damage to or destruction of personal property, injury to or death of any person directly attributable to or arising out of AMG’s negligence or willful misconduct in connection with the performance of the Services hereunder.
LIMITATION OF LIABILITY. EXCLUDING INDEMNIFICATION OBLIGATIONS OR DAMAGES ARISING FROM BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOST PROFITS (excluding direct damages for AMG’s anticipated fees), BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY, NOR SHALL AMG’S AGGREGATE LIABILITY FOR ANY OTHER DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE REVENUE PAID BY CLIENT TO AMG IN ACCORDANCE WITH THE APPLICABLE SOW.
Work Product. All Materials developed or prepared by AMG or its employees or Subcontractors for Client hereunder that are subject to copyright, trademark, patent, or similar protection shall become the property of Client and deemed “Work Product” provided that (i) the Materials are produced in final form (i.e., ready to be disseminated to the public) by AMG for Client within six (6) months of being proposed by AMG and (ii) Client has paid to AMG all fees and costs associated with creating and, where applicable, producing the Materials. All title and interest to Work Product shall vest in Client as “works made for hire” within the meaning of the United States Copyright Act. To the extent that the title to any such Work Product may not, by operation of law or otherwise, vest in Client as a work made for hire or any such Work Product may not be considered a work made for hire, all right, title and interest therein is hereby irrevocably assigned by AMG to Client. In order to assure that its employees and Subcontractors do not possess proprietary rights in the Work Product that are inconsistent with Client’s possession of such rights, AMG will, as necessary, obtain the assignment and conveyance to Client, or to AMG for the benefit of Client, of any proprietary rights that such persons or entities may then have or may have in the future to such Work Product.
AMG Materials. Notwithstanding any other provision of this Agreement, AMG shall retain all right, title and interest in and to, including any intellectual property rights with respect to, any data, designs, processes, specifications, software, applications, source code, object code, utilities, methodologies, know-how, materials, information and skills (and any derivative works, modifications and enhancements thereto) owned, acquired or developed by AMG or its licensors, and regardless of whether incorporated in any Work Product, (i) prior to the Effective Date; (ii) independently of, or not in connection with the performance of, the Services; (iii) in the general conduct of its business or to serve general functions that are not specific to Client’s unique requirements; or (iv) if generally applicable, non-site specific and unrelated to the “look and feel” of the Materials or other deliverable, in connection with the Services (or partially in connection with the Services) (collectively, “AMG Materials”). Subject to fulfillment of Client’s payment obligations hereunder, AMG hereby grants Client a worldwide, perpetual, irrevocable, royalty-free, nonexclusive license, with right to sublicense (but only for the benefit of Client or its permitted successors or assigns), to use AMG Materials actually incorporated into Work Product pursuant to this Agreement as necessary for or in connection with the use, management and maintenance of such Work Product, provided that Client shall not have the right to publish or distribute any AMG Materials other than as part of such Work Product or to create derivative works of AMG Materials.
Governing Law, Jurisdiction, and Venue. This Agreement and the rights of the parties hereunder shall be governed by and interpreted in accordance with the internal laws of the State of Indiana, without regard to its conflict of laws rules or choice of law principles. Exclusive jurisdiction and venue for any claims made by either party against the other shall be within the state and federal courts located in the State of Indiana.
Waiver. The failure of any party to seek redress for violation of or to insist upon the strict performance of any agreement, covenant or condition of this Agreement shall not constitute a waiver with respect thereto or with respect to any subsequent act.
No Third Party Beneficiaries. This Agreement is made solely and specifically among and for the benefit of the parties hereto, and their respective successors and assigns and no other person will have any rights, interest, or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise
Assignment. Except as may be necessary in the rendition of the Services as provided herein, neither AMG nor Client may assign any part or all of this Agreement, or subcontract or delegate any of their respective rights or obligations under this Agreement, without the other party’s prior written consent. Any attempt to assign, subcontract, or delegate in violation of this paragraph is void in each instance.
Paragraph Headings and Captions. Paragraph headings and captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of this Agreement or any provision thereof.
Severability. Wherever possible each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under any such law, such provision shall be limited to the minimum extent necessary to render the same valid or shall be excised from this Agreement, as the circumstances require, and this Agreement shall be construed as if said provision had been incorporated herein as so limited or as if said provision had not been included herein, as the case may be, and enforced to the maximum extent permitted by law, and the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in order that the transactions contemplated by this Agreement can be consummated as contemplated.
Force Majeure. Neither Client nor AMG shall be liable to the other for any failure, inability, or delay in performing hereunder if caused by any cause beyond the reasonable control of the party so failing, including, without limitation, an Act of God, war, strike, or fire; but due diligence shall be used in curing such cause and in resuming performance.
Independent Contractors; No Partnership or Joint Venture. Client and AMG agree that AMG shall perform its duties under this Agreement as an independent contractor. Furthermore, AMG is not a true party of interest of Client, and therefore, limited in its control over Client’s business pursuant to state Administrative Code
Survival. Provisions of this Agreement, the performance of which by either or both parties, or by their sense and context, are intended to survive, will survive the completion, expiration, termination or cancellation of this Agreement.
Entire Agreement. This Agreement and the Schedules attached hereto constitute the entire agreement between AMG and Client relating to the subject matter hereof and supersedes any prior agreement or understandings between them. This Agreement may not be modified or amended unless such modification or amendment is agreed to by both AMG and Client in writing.
Annual Pay Addendum. If client upgrades to the PPP annual pay option then the following applies
Price is locked in for the life of the client’s account at the same level at first sign up and cannot be raised no matter the Client’s list size. If Client puts account on hold or does not renew then the Client will void this benefit and will need to start at current pricing if/when client signs up again for PPP.
Client will receive SMS marketing management as an additional bonus at no additional cost. Client will be responsible for his/her own Twilio account and and fees associated with that account.
IN WITNESS WHEREOF, AMG and Client have executed this Agreement on the day and date as first appears.