Terms and Conditions

Digital Media Pros
Service Agreement

This SERVICE AGREEMENT (this “Agreement”), is made and entered into to be effective as of the the electronic sign-up date (the “Effective Date”), by and you (the “Client”) and NATIONAL MARKETING SOURCE, LLC d/b/a DIGITAL MEDIA PROS (“DMP”). DMP and Client shall together be referred to herein as the “Parties” or individually as a “Party.”

RECITALS

WHEREAS, DMP will provide certain services, including but not limited:
1) Creation of a (1) page website (if setup fee has been paid)
2) Set up toll-free or local phone number tracking (if setup fee has been paid)
3) Create or link an Adwords / Bing / and/or Facebook Ad Account
4) Create or link an Analytics account to your website
5) Create a marketing campaign in one of the above marketing platforms
6) After building the campaign, we will turn it on, so the ads display in the appropriate medium
7) Once the campaign(s) are live, we will continue to maintain and optimize the ad account to ensure the ads keep running on the selected platform(s)

Client acknowledges that DMP will use established digital advertising best practices. Due to the dynamic nature of digital advertising, DMP DOES NOT GUARANTEE OR REPRESENT THAT YOU WILL GENERATE ANY REVENUE FROM OUR ADVERTSITING EFFORTS. WHILE MOST Clients SEE BENEFICIAL RESULTS WITHIN (90) DAYS, WE CANNOT GUARANTEE THAT YOU WILL SEE SIMILAR RESULTS.

WHEREAS, the Client wishes to retain DMP to perform the Services, as specifically provided in this Agreement.
NOW, THEREFORE, in consideration of the above recitals and the mutual promises and covenants contained herein, Client and DMP agree as follows:
SCOPE OF SERVICES. DMP, as an independent contractor and not as an employee of Client, shall competently and timely perform the Services listed above within (30) days from the sign-up date. This timeframe will be extended if we are missing necessary documents from you. We will email and call you if there are items outstanding and it is your responsibility to return those items as soon as possible. If we do not get items requested after (7) days, we will place your account on a pause and will remain in a paused status until outstanding items are returned to us.

PAYMENT SCHEDULE. The client will pay the first-month management fee at the time of signup. The setup will also be due at the time of sign up. However, the setup can be spread out over a period of (6) months. DMP will retain ownership of the advertising campaign, website and tracking phone number until the setup fee is paid in full. Advertising costs will be paid by the client directly to the advertising medium, i.e. Google, Bing, Facebook, etc., these costs shall be considered the Client’s “aggregate ad spend.” The client is responsible for all 3rd party advertising charges. Monthly Management Fees will be billed monthly on the anniversary date of agreement signing/ signup date. The Management fee shall be based on the attached “monthly management fee schedule” which is located at the bottom of this agreement.

TERM AND CANCELLATION. This Agreement shall be effective for a period of a month to month from the Signup date. Notwithstanding the foregoing, in the event that neither Party is in default of this Agreement, the Agreement shall be automatically renewed for an additional (30) days. Notwithstanding the foregoing, this Agreement may be canceled by either Party after the first (30) days, with a written notice to the other Party, but in no event shall Client be entitled to deliver any such termination notice to DMP within thirty (30) days of the signup Date. Notwithstanding any termination or cancellation, any Fees paid to DMP are non-refundable. All fees associated with this agreement are non-refundable. In the event of a termination or cancellation of this Agreement, all Fees and any unbilled costs will be due and payable through the cancellation or termination date To cancel this agreement in writing send an email to accounting@digitalmediapros.com

WARRANTY DISCLAIMER. Client accepts that given the dynamic nature of digital advertising that it is not possible for DMP to guarantee specific results. DMP utilizes what it feels are the best practices in the design and implementation of DMP’s services and ad campaigns. While DMP has achieved outstanding results for our clients, DMP cannot guarantee the Client will experience similar results. Favorable results are generally seen within 60 days of DMP beginning work with a Client, and optimal results are generally seen after 90 days, but DMP cannot guaranty whether the Client will experience any improvement as a result of DMP’s Services. Clients acknowledge that it takes the time to optimize, monitor and improve digital advertising campaign(s) and as such will give a reasonable timeframe of (60) days to see results from our efforts.

DMP WARRANTS THAT ALL SERVICES SHALL BE PERFORMED IN A PROFESSIONAL MANNER AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. CONSULTANT’S OBLIGATION FOR BREACH OF THE FOREGOING WARRANTY SHALL BE LIMITED TO EITHER USING REASONABLE COMMERCIAL EFFORTS TO CORRECT SUCH NONCONFORMING SERVICES OR, AT CLIENT’S OPTION, REFUNDING THE AMOUNTS PAID BY THE CLIENT TO THE CONSULTANT LEADING UP TO THE DATE OF THE BREACH OF THE WARRANTY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DMP EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO ANY AND ALL INFORMATION, PRODUCT, SERVICES, POLICIES OR ACTIONS OF DMP.

LIMITATION OF LIABILITY. In no event shall DMP be liable to Client or any other person or entity for any delays, inaccuracies, errors or omissions with respect to any information, Services, products, policies or actions, or the transmission or delivery of all or any part thereof to Client, for any damage arising therefrom or occasioned thereby, or for the result obtained from its use. Further, DMP shall not be liable to Client or any third party in the event any information transmitted or delivered by DMP or one of DMP’s agents, affiliates, contractors or independent contractors infects or contaminates the Client’s or any third party’s computer operating system, data, or information. In no event will DMP be liable to Client or any third party for any indirect, special, punitive or consequential damages (including, but not limited to, damages for loss of business profits, business interruption and loss of programs, data or information), or any other damages arising under this Agreement or out of the availability, use, reliance on, or inability to use Websites or any information contained therein, and regardless of the form of action, whether in contract, tort or otherwise. IN THE EVENT DMP IS HELD LIABLE FOR ANY SUCH MATTERS, THE CUMULATIVE AGGREGATE LIABILITY OF DMP FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT TO DMP UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE SUCH DAMAGES WERE FIRST INCURRED BY CLIENT.

INDEMNITY. To the fullest extent permitted by law, Client shall indemnify, defend and hold harmless DMP and its members, managers, employees, agents, servants, attorneys, representatives, affiliates, successors and assigns from and against all liability, damages, loss, costs, expenses, and attorneys’ fees, incurred by DMP and/or its members, managers and employees, agents, servants, attorneys, representatives, and affiliates, arising out of or related to the Services provided by DMP to Client. This includes any violation by Client, intended or unintended, of any copyrights, trademarks, service marks, patents, and rights of publicity or other proprietary rights of any nonparty to this Agreement; and any information posted by Client on a website or other medium, as well as any violation of the provisions of this Agreement.

AGREEMENT TO ARBITRATE. In the event of any dispute arising under this agreement between DMP and Client, such dispute shall be settled by arbitration in accordance with the rules for commercial arbitration of the American Arbitration Association (or a similar organization) in effect at the time such arbitration is initiated. Any questions of contract interpretation shall be determined by the laws of the state of Florida. The exclusive forum for the arbitration hearing shall be Deerfield Beach, FL unless both Parties consent to a different location. The decision of the arbitrator shall be final and binding. The prevailing party shall be awarded fees and costs by the arbitrator, including administrative and other costs of enforcing an arbitration award, costs of subpoenas, depositions, transcripts and the like, witness fees, payment of reasonable attorney’s fees, and similar costs related to collecting an arbitrator’s award, will be added to, and become a part of, the amount due pursuant to this Agreement. An arbitrator’s decision may be entered in any jurisdiction in which the party has assets in order to collect any amounts due hereunder.

ENTIRE AGREEMENT/MERGER CLAUSE. This Agreement contains the entire agreement between DMP and Client with respect to the subject matter of this Agreement and supersedes all prior negotiations, agreements, and understandings with respect thereto. This Agreement may only be amended by a written document duly executed by all Parties.

CLIENT REPRESENTATIONS AND WARRANTIES. Client represents and warrants that the undersigned individual is authorized to sign and bind Client hereto. The client is and shall remain properly licensed to perform all aspects of its business in accordance with any and all applicable federal, state and local laws, rules and regulations affecting the activities of Client including, without limitation, Gramm-Leach Bliley, FTC “Do Not Call” and CAN-SPAM Act laws.

INDEPENDENT RELATIONSHIP. Each of the Parties is, and throughout the term of this Agreement shall be, an independent contractor with respect to the other Party, and not an employee, partner, fiduciary or agent, of the other Party. Neither Party shall be entitled to nor receive any benefit normally provided to the other Party’s employees such as, but not limited to, vacation payment, retirement, health care or sick pay. The Client shall not be responsible for withholding income or other taxes from the payments made to DMP. DMP shall be solely responsible for filing all returns and paying any income, social security or other tax levied upon or determined to be due with respect to the payments made to DMP by the Client pursuant to this Agreement. The employees, methods, facilities and equipment of DMP shall at all times be under DMP’s exclusive direction and control.

INTELLECTUAL PROPERTY. DMP possesses or may possess intellectual property rights associated with intellectual property created prior to this Agreement, during this Agreement, and thereafter that includes, without limitation, tangible and intangible trade secrets, Confidential Information (hereinafter defined), proprietary information, business information, inventions, creations, copyrights, copyrightable works, patents and patentable concepts, trademarks, service marks, data collections and digital rights pertaining to, without limitation, its facilities, laboratories, employees, business, operations, technologies, procedures and facilities and any services it provides as well as authorized improvements thereto (the “DMP Intellectual Property”). Client shall have no right to the DMP Intellectual Property with the exception of the right to a license to utilize the DMP Intellectual Property during the duration of this Agreement and strictly for the purpose of utilizing the Services provided by DMP. Client shall not have any right to re-sell, “white box”, transmit, distribute, license, or otherwise dispose of DMP Intellectual Property unless expressly authorized in writing signed by an authorized representative of DMP. The client also will not hire or contract any employee of DMP for any reason. If the client does hire or contract DMP employee, they will be subject to civil litigation.

MISCELLANEOUS. All notices may be sent by email or express overnight mail to the email address or mailing address provided in the Statement of Work, which notice shall be deemed delivered on the date on which it was received (in the case of an e-mail that is not undeliverable)

Or on the date of delivery through the use of any overnight courier service similar to UPS or Federal Express. This Agreement constitutes the final, complete and exclusive statement of the terms of the Agreement pertaining to the transaction referenced herein and supersedes any and all prior and contemporaneous understandings and agreements, oral or otherwise, including but not limited to any agreement between Client and DMP or any affiliate of DMP. The client has not been induced to enter into this Agreement by, nor is Client relying on, any representation or warranty outside those expressly set forth in the Agreement. This Agreement may not be assigned by Client to an unaffiliated third party without the express written consent of DMP. If any provision of this Agreement is adjudicated by a court or tribunal of competent jurisdiction to be void and unenforceable, the same shall in no way affect any other provision of this Agreement and/or the validity or enforceability of this Agreement as a whole. This Agreement may be supplemented, amended or modified only by mutual written agreement of the parties. No waiver of a breach, failure of any condition or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure right or remedy shall be deemed a waiver of any other breach, failure, right or remedy whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. This Agreement is executed and delivered in and shall be governed by and construed in accordance with the laws of the State of Florida. Any dispute that arises under or relates to this Agreement (whether contract, tort or both) shall be resolved by arbitration as otherwise provided herein which determination may be entered into the Superior Court of the State of Florida for the county of Broward. In the event of any controversy, claim or dispute between the parties hereto, arising out of or relating to this Agreement or the breach thereof, the prevailing party shall be entitled to recover from the other party reasonable expenses, attorneys’ fees, and costs. Time is of the essence with respect to performance under this Agreement.

Monthly Management Fee Schedule * paid directly to advertising provider

THE UNDERSIGNED HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS AND ACCEPTS THE OBLIGATIONS IMPOSED, AND AGREES TO ALL OF ITS TERMS, WITHOUT RESERVATION.

BY CLICKING, “YOU AGREE TO THE TERMS AND SERVICE AGREEMENT” YOU HEREBY AGREE THAT YOU ACCEPT AN ELECTRONIC CONSENT TO THE ABOVE TERMS. YOUR SIGN UP DATE AND IP ADDRESS WILL BE LOGGED AS PROOF OF CONSENT.