MARKETING SERVICES TERMS
Each renewal constitutes a new commitment at the then-current retainer rate. If Customer elects to discontinue Services before the expiration of a committed term, Customer remains responsible for the remaining financial obligation for that term, subject to the early termination provisions of this Agreement. Any alternative buyout or early termination arrangement must be mutually agreed upon in writing by Company and Customer.
Company will invoice Customer at the beginning of each month, and payment is due within thirty (30) days of receipt of the invoice. Customer’s payment obligation is not contingent upon the use of all dedicated hours or completion of any particular deliverable within that month.
If Customer fails to pay any invoiced amount within forty-five (45) days, Company may charge interest on the overdue amount at a rate of 1.5% per month, or the maximum rate permitted by law, whichever is less. Customer shall also be responsible for all reasonable costs incurred in collecting overdue amounts or enforcing payment obligations under this Agreement, including reasonable attorney fees, filing fees and court costs, to the extent permitted by law.
Customer agrees that Customer is prohibited from creating, or engaging a third party to create, derivative works based upon concepts or proposals developed by Company and presented to Customer, whether accepted, used, unused or rejected, without Company’s prior written consent.
Company is not responsible for the legality, licensing, accuracy, functionality, performance or condition of materials, content, websites, software, platforms, accounts or other assets created, purchased, provided or managed by Customer or a third party. Customer is responsible for ensuring it has all necessary rights, licenses and permissions for materials provided to Company. Company’s modification, migration, hosting, maintenance or use of any such materials or assets does not constitute acceptance of responsibility for their original creation, licensing, functionality or condition.
Company’s responsibilities are limited to the Services specifically identified in the applicable scope of work or Exhibit A. Customer acknowledges that engagement of Company for a specific service does not make Company responsible for other aspects of Customer’s website, technology, marketing, advertising or business operations that are outside the agreed scope. Additional services, troubleshooting, corrections or work outside the agreed scope may require additional fees and/or a separate agreement.
Customer is responsible for timely review, feedback and approval of work submitted by Marcom Content by Ashley, LLC. After work has been reviewed and approved, it is considered final. When timely feedback, approval or direction is not provided, Marcom Content by Ashley, LLC may use its professional judgment to make reasonable decisions necessary to keep projects and marketing initiatives moving forward. Such decisions will be made in good faith and based on the information, strategy and direction available at the time. Marcom Content by Ashley, LLC shall not be responsible for delays, revisions, performance issues or other consequences resulting from the Customer’s failure to provide timely feedback, approvals, information or direction. In no event shall Marcom Content by Ashley, LLC be liable to Customer or any third party for consequential, incidental or special damages, or lost profits, resulting from or related to the Services, whether claimed under contract, tort or any other legal theory.
Any and all notices and other communications required or permitted under this Agreement shall be in writing and delivered by email to the email addresses identified in Exhibit A or by mail to the addresses identified on page one of this Agreement. Email shall be the preferred method of notice and will be deemed received on the date sent, provided the sender does not receive a notice of failed delivery. Either party may update its mailing address or email address for purposes of notice by providing written notice of the change to the other party in accordance with this Section.
ANeither party may assign, transfer or delegate any of its rights, duties or obligations under this Agreement without the prior written consent of the other party. Any attempted assignment, transfer or delegation without such consent shall be void. Notwithstanding the foregoing, Company may assign this Agreement without Customer’s consent in connection with a merger, acquisition, sale of substantially all of its assets or other business succession.
Company is and shall at all times remain an independent contractor of Customer and not an employee, agent, partner or joint venturer of Customer. Nothing in this Agreement shall be construed to create an employment, agency, partnership or joint venture relationship between the parties.
Customer shall defend, indemnify and hold harmless Company and its owners, officers, employees, contractors, representatives and assigns from and against any claims, demands, actions, damages, losses, liabilities, judgments, costs and expenses, including reasonable attorney fees, arising out of or relating to: (a) any content, information, data, images, trademarks, intellectual property or other materials provided, supplied or approved by Customer; (b) the accuracy, legality or use of information, claims or representations provided or approved by Customer; (c) Customer’s products, services, business practices, instructions or representations; (d) Customer’s violation of any applicable law, regulation or third-party right; (e) Customer’s breach of this Agreement; or (f) Company’s good-faith use of Customer-provided materials, information, instructions or previously established direction in performing the Services.
Customer is responsible for ensuring that it has all necessary rights, licenses, permissions and authorizations for materials provided to Company. Company shall not be responsible for claims, losses, delays, revisions or other consequences resulting from Customer’s failure to timely review, respond or provide necessary direction. These obligations shall survive the termination or expiration of this Agreement.
This Agreement shall be construed in accordance with the laws of the state of Ohio, so both parties hereby unequivocally waive their right to a trial by jury and consent to a bench trial and to the personal and exclusive jurisdiction of a court of competent jurisdiction located in Stark County, Ohio.
Customer acknowledges that marketing services are designed to increase brand awareness, visibility, engagement and lead generation where applicable, but Marcom Content by Ashley, LLC does not and cannot guarantee any specific results, including but not limited to sales, revenue, profits, leads, conversions, search rankings, website traffic or return on investment. Marketing performance depends on numerous factors beyond our control, including but not limited to market conditions, competition, consumer behavior, pricing, the Customer’s sales process, responsiveness to inquiries, implementation of recommendations and the level of collaboration, communication and access provided by the Customer.
Customer understands and agrees that fees are charged for the professional services, expertise and deliverables provided, not for any guaranteed business outcome. Accordingly, the Customer’s obligation to pay for services and deliverables is not contingent upon achieving any particular level of sales, leads, revenue or other performance metric.
Customer is responsible for providing timely feedback, approvals, content, account access, information and other materials reasonably needed for Marcom Content by Ashley, LLC to perform its services. Delays by the Customer may result in adjusted timelines, rescheduled work or changes in deliverables and do not reduce or suspend the Customer’s payment obligations.
Requests or work outside the agreed scope of services may require additional fees, additional dedicated hours and/or a revised timeline. Marcom Content by Ashley, LLC will communicate with the Customer regarding material scope changes before proceeding with additional billable work.
Unless specifically included in the agreed scope or fees, the Customer is responsible for third-party costs associated with its marketing activities, including but not limited to advertising and media spend, printing, stock photography or other licensed assets, software, subscriptions, website hosting, domain fees and media placements. Such expenses are separate from Marcom Content by Ashley, LLC’s professional service fees.
This Agreement, together with any other documents, represents the full and complete understanding of the parties and supersedes any prior or contemporaneous discussions, representations or agreements relating to the Services. Each person executing this Agreement represents and warrants that he or she is duly authorized to bind the party on whose behalf the Agreement is executed.
All payments are nonrefundable. Retainer fees are based on the value of MCA’s professional services, expertise and reserved capacity and are not billed or reconciled on an hourly basis. Any hours identified in a retainer are used for scope and capacity planning. MCA will communicate with Customer if work is expected to materially exceed the dedicated hours so that priorities, scope or additional fees can be discussed in advance. Due to scheduling and bandwidth constraints, unused retainer hours do not roll over from month to month and expire at the end of each applicable monthly service period.