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Terms & Conditions

 

 

By signing this Agreement, (“Client”) has retained OTM LLC, dba, On-Target! Marketing & Advertising (“Service Provider”) to proceed with the requested services, and agrees to the terms and conditions as set forth in this Agreement:

  1. Appointment.

The Client hereby engages Service Provider to provide growth agency services and Service Provider accepts such appointment and agrees to perform the services specified hereunder on behalf of Client. The Service Provider acknowledges the responsibility as part of the normal course of business to hold in confidence all information regarding Client’s business or businesses that Client considers to be proprietary and such information shall remain confidential post termination of the agreement.

Services. Service Provider shall provide services customarily performed by sales consulting, marketing, public relations and advertising agencies, creative and digital communication firms. However, no services shall be performed unless and until Service Provider receives your prior authorization. A non-inclusive list of some of the services that will be provided on request include:

Strategic Consultation. Service Provider will analyze a variety of business factors for the Client such as, business practices, marketplace dynamics, strengths, weaknesses, market opportunities and threats, financial performance and goals. Based on these findings, Service Provider will develop strategic and tactical plans appropriate for the Client’s objectives and resources.

Creative Development. Service Provider will assess Client’s current practices, personnel, and communication resources, then conceive and produce creative executions appropriate for the approved plans.

Technology. Service provider will assess Client’s current technology stack and make any appropriate recommendations for change, addition, deletion. All technology commitments will remain in the power of Client as will all financial arrangements.

Training. Service provider may provide training to Client’s personnel related to a variety of topics such as technology/software usage, sales and marketing best practices, market trends, or creative skills.

Media. Service Provider may develop media plans and negotiate with the appropriate media entities to acquire space, time, placements, etc., as needed to execute a Client approved plan.

Execution. Service Provider will perform all necessary and related services to effectively execute the plans within the constraints of the approved budget.

For details on these activities refer to the Scope of Work (SOW) Document.

  1. Terms.
    Billing details are expressed in the Marketing Plan Spreadsheet or the Proposal Scope of Work (SOW). Prices do not include any applicable sales taxes unless expressed otherwise.
  2. Office Hours & Communication.

Office hours are Monday – Friday from 8:30 am to 5:30 pm (CST).  Video Conferencing & Email will be the primary forms of communication between Client and Service Provider. Video Conferencing is the preferred mode as we have found looking each other in the eye improves communication, speeds projects, and builds more solid relationships, trust and accountability.

  1. Outside Expenses
    Reasonable Outside expenses incurred on behalf of Client are not included in any fees and will be billed to Client. Reimbursable expenses may include, but are not limited to, hosting fees, domain registrations, third-party license fees, photography, Royalty-free video, office supplies (e.g., file folders, envelopes, CDs, labels, etc.), travel costs outside of the Houston market as required by Client, payments made to vendors, and shipping and handling costs. Payment is due upon receipt. Media Billing is subject to Client prior approval. Agency will place advertisements in the media agreed upon. Client agrees that Agency is not responsible for any charges for media placed on your behalf. Agency shall retain any “Agency Discounts” that are applicable.

  2. Hourly Pay Basis.

Should Client initiate any additional projects outside this SOW, then hours will be applied against any deposit until expended. Subsequently, Client will be billed on a monthly basis for each prior month’s hours. Payments are due upon receipt. Payments rendered are considered fully earned and non-refundable. Hours are billed in 15 (fifteen) minute increments.

  1. Retainers.
    Monthly retainers provide ongoing support at a discounted rate up to the number of hours set forth in an Agreement. Retainer fees are required in full in advance of services; payment is due on or before 15th of each month. If payment is not received by the 15th, full standard hourly rates will apply for any work performed during that month, and monies received will be applied accordingly. Services rendered beyond the retained number of hours will be billed at the full hourly rate with payment due upon receipt. Payments rendered are considered fully earned and non-refundable.

There is a per-hour minimum for all services. Hourly rates are billed in 15 (fifteen) minute increments. Client understands that hourly rates are subject to change without notice at the discretion of Service Provider, that said, Service Provider will endeavor to notify Client of any rate changes with ample notice.

  1. Additional Work.
    Client understands additional work beyond what is outlined in the SOW will be governed by Sections 4, 5, 6 and 8.

  2. Service Categories & Rates

Hourly Rates

Services

OTM&A Hourly Rates

Retainer Discounted Rates

Strategic Consultation

$350.00

$175.00

Sales Training

$300.00

$175.00

Public Relations

$250.00

$175.00

Web Application Programming

$250.00

$175.00

Creative Development/Branding

$200.00

$175.00

 

Client Responsibilities.
Client understands that Service Provider is not an employee, and that this will be a collaborative, professional relationship of equals where mutual professional respect, courtesy and consideration are expected. Due to the virtual nature of the relationship, Client understands the importance of communication, especially via email, and agrees to respond to questions, requests and communications from Service Provider in a timely manner. Client understands that Service Provider is a business with other clients to serve, and requires fair, realistic notice in order to attend to requests and projects. Poor planning or miscommunications on the part of the Client will not constitute an emergency for Service Provider. Client understands that Service Provider may require detailed clarification of projects in order to meet expectations and provide the best support and highest quality work.

  1. Materials & Information.
    Client will provide all content, outlines, photos, project images, etc., necessary for any special projects. Source material must be clear and legible. Client is responsible for furnishing all pertinent information, and do so in an accurate, truthful and complete manner. Client accepts the responsibility to provide the information necessary for Service Provider to perform or complete the agreed services or project in a timely manner.
  2. Disclaimer of Warranties.
    EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT OR OTHERWISE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. Warranties for any computer software and hardware products installed or utilized as part of this engagement are provided by the manufacturer of those products. Service Provider offers no warranties, expressed or implied, regarding the functionality or capabilities of the software, hardware, or cloud-based services and products installed or utilized as part of this engagement.
  3. Delivery of content.
    Completed projects are delivered via various media: thumb drives, DVD, fax, email, FTP, U.S. Mail, or other means as required by the Client. Client is responsible and will be billed for all media, shipping and handling costs. There is no charge for faxing, emailing, uploading or U.S. mail under 1 ounce (#10 envelope and one stamp).
  4. Accuracy.
    Client assumes full responsibility for acceptance of work or services performed and agreed upon, as well as final proofing and accuracy. Service Provider is not responsible for errors or omissions.
  5. Payment Options.
    Business checks are accepted for payment. AMEX, Discover, Mastercard and VISA credit cards will incur a 3% service fee applied to the invoices for such payments.
  6. NSF Fees.
    There is a $50NSF (insufficient funds) fee for all returned checks.
  7. Late Payments.
    Payments not received by due date will result in work cessation. Service Provider reserves the right to refuse completion or delivery of work until past due balances are paid. Monthly late charges of $20.00 or 1.75% (APR of 21%) whichever is greater, will be assessed on unpaid balances every 30 (thirty) days.
  8. Lien.
    All work performed, may be retained as security until all just claims against Client are satisfied.
  9. FEE Adjustments.
    Service Provider reserves the right to impose late fees and/or increase hourly rates of Clients who consistently fail to respond to requests in a timely manner, do not supply needed information, or otherwise impair efficient workflow increase administrative time, resulting in unnecessarily wasted retainer hours, or prevent Service Provider from working to optimum standards and servicing other clients in a fair and equal manner.
  10. Accuracy of Information.
    Client agrees that the accuracy of information supplied to Service Provider is the sole responsibility of Client, and that Service Provider is not responsible and shall not be held liable for the results of services performed on the basis of inaccurate, incomplete or untruthful information furnished by Client.
  11. Indemnification/Release of Liability.
    Client shall indemnify, defend and hold Service Provider harmless from any and all lawsuits, costs, damages or proceedings, pertaining to any and all litigation resulting from content, information and or assertions provided by the Client. Client shall pay all expenses incurred by Service Provider including, but not limited to, all attorneys’ fees, costs and expenses incurred should Service Provider be named a party in any litigation resulting from content, information and or assertions provided by the Client. Client shall further indemnify and hold harmless Service Provider and its agents, officers and directors from liability for any and all claims, costs, suits and damages, including attorneys’ fees arising directly or indirectly out of or in connection with the operation of Client, and from liability for injuries suffered by any person relating to the Client. This agreement to indemnify Service Provider is not limited to any acts or omissions, statements or representations made by Service Provider in the performance and/or nonperformance of Service Provider’s duties hereunder and relating to all contractual liabilities, which may be alleged or imposed against Service Provider. All reasonable precautions will be taken to safeguard the property entrusted to Service Provider. In the absence of negligence, however, Service Provider will not be held liable for loss, destruction or damage of any kind resulting from items which are lost or delayed in transit, whether such transit is electronic, fax, mail or otherwise, nor for unauthorized use by others of such property. Service Provider will not be held liable for any incidental, consequential or indirect damages, including without limitation damages for loss of profits, business interruption, loss of information, plagiarism, etc. Service Provider will not be held liable for typographical omissions or errors. In the case of Service Provider’s gross negligence or willful misconduct, Service Provider could be held liable, but this liability is limited to a maximum amount equal to the amount paid by Client to Service Provider up to the point of litigation.
  12. Termination.
    Retainers may be terminated by either party for any reason with 60 (sixty) days advance written notice of intent to cancel, unless expressed otherwise within the Clause 2 Terms or SOW.

If cancellation of a project or hourly based engagement occurs prior to the completion of finished art, all work to date of cancellation shall be paid by Client. In the event that the project is billed on an hourly basis, all work performed up to cancellation will be paid in full and all necessary and related reasonable expenses shall be paid in full. If cancellation occurs after completion of the finished art, the cancellation fee shall be the original fee and any overage fees.

If rejection of any finished art occurs prior to the completion of the finished art, Client shall pay costs of finished art to the date of the rejection. In the event that the project is billed on an hourly basis, all work performed up to the date of rejection will be paid in full and all necessary and related reasonable expenses shall be paid in full. If rejection occurs after completion of the finished art, the rejection fee shall be the original fee. The client without a separate fee MAY NOT USE rejected or cancelled work for reproduction unless such work was rejected or cancelled due to termination of this contract. Once payment in full is received by Service Provider, then Client will own such work.

  1. Expiration & Modification.
    This Agreement shall remain in effect until such time as one or the other Party provides written notice of cancellation. This Agreement may be modified or amended as necessary after negotiations initiated by either Party. If agreement is reached, only a written instrument signed by both Parties will modify or amend this Agreement.
  2. Arbitration of Disputes.
    Client and Service Provider agree that any controversy or claim arising out of or relating to this contract, or the breach
thereof, shall be settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”). Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either party shall serve the other party and the Houston office of the AAA the notice of intent to arbitrate. There shall be three arbitrators; one selected by each party within 20 days of the notice of intent and a third selected by the 2 arbitrators within 10 days of the selection of the last of the 2 arbitrators. The arbitration proceedings shall be located in Houston, Texas.

Force Majeure. Except as otherwise expressly provided in this Agreement, neither party will be liable for any breach of this Agreement, other than any default in payment obligations, for any delay or failure of performance resulting from any cause beyond such party’s reasonable control, including, but not limited to, the weather, strikes or labor disputes, war, terrorist acts (including, without limitation, acts by third party computer hackers), riots or civil disturbances, government regulations, acts of civil or military authorities, or acts of God provided the party affected takes all reasonable necessary steps to resume full performance.

The terms and conditions of this Agreement may be modified or amended as necessary only by written instrument signed by both parties. By signing this Agreement, I indicate that I understand, agree to and accept the terms and conditions as contained herein.

  1. Service Provider Employees.

Employees are the most valuable asset of our companies. This section defines what happens if either party wishes to hire an employee from the other party. The loss of any employees will cause great harm, the amount of which will be difficult, or impossible to determine. Therefore, from the date that you accept this Agreement until twelve months after termination hereof, both parties agree that we will not offer employment to any current or former employees or contract with, either individually or through a third party, any current or former employees. In the event of a breach of this provision, both parties agree to pay liquidated damages an amount equal to that employee’s compensation for the most recent twelve (12) months of his or her employment.

 

  1. Estimates

Should Client initiate any additional projects requiring estimates, estimates may include professional services time only and may not include any outside costs such as photography, printing, special coding requirements, e.g., video or audio production, talent fees, or custom programming, XML, ASP, PHP, etc., unless specifically noted. Estimated costs do not include any applicable sales taxes unless indicated specifically.

 

  1. Confidentiality and Non-Disclosure

In providing these Services it is necessary for Service Provider to access confidential information. This section details our commitment to keeping your information confidential: neither party will disclose to third parties the other’s Confidential Information without the prior written consent of the other party, nor will either party use the other party’s Confidential Information, except to the extent necessary to exercise such party’s rights and fulfill such party’s obligations under this Agreement. For purposes of this Agreement, “Confidential Information” means any and all proprietary information or material (in oral, written, graphic or any other form) concerning either party (the “Discloser”) provided by or on behalf of the Discloser to the other party (the “Recipient”) hereunder, including without limitation: (a) ideas and concepts for existing and new products, processes and services; (b) specifications for products, equipment and processes, whether technical or financial; (c) manufacturing and performance specifications and procedures; (d) engineering drawings and graphs and software (including source and object code), hardware configuration, computer programs and algorithms; (e) technical, research and engineering data; (f) materials and material specifications; (g) laboratory studies and benchmark tests; (h) manuals, including service manuals and operation manuals; (i) quality assurance and acceptance policies, procedures and specifications; (j) evaluation and/or validation studies; (k) pending patent applications; (l) all other know-how, methodology, procedures, techniques and trade secrets related to research, engineering, development and manufacturing; and (m) business information, marketing and development plans, forecasts, research, development agreements and customer, and vendor information. The Recipient agrees to prevent the unauthorized disclosure or use of the Discloser’s Confidential Information by using the same degree of care (but no less than a reasonable degree of care) as the Recipient uses to protect its own Confidential Information. Further, the Recipient agrees to limit access to the Confidential Information of the Discloser to the Recipient’s financial advisors, legal counsel and consultants who (a) have a need to know such information and (b) have signed an acknowledgement that they agree to be bound by this Agreement or delivered to the Discloser a separate confidentiality agreement satisfactory to the Discloser. Each party agrees to notify the other party in writing of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information which may come to the notifying party’s attention. Notwithstanding the foregoing, Confidential Information shall not include any information which can be shown to be: (a) known to the Recipient without restriction at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (b) a matter of public knowledge through no fault of the Recipient; (c) rightfully received by the Recipient from a third party without a duty of confidentiality on the third party; (d) independently developed by the Recipient without reference to any of the Discloser’s Confidential Information, which can be demonstrated by written records; (e) disclosed pursuant to court order or otherwise under operation of law, rule or regulation, provided that Recipient provides prompt notice of such requirement to Discloser to enable Discloser to seek a protective order or otherwise prevent or restrict such disclosure; or (f) disclosed by Recipient with prior written approval from Discloser.

 

 

This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, conversations, negotiations, understandings, term sheets, letters of intent, and confidentiality agreements relating to the subject matter contained herein.

 

 

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