This Client Online Services Agreement (this “Agreement
”) by and between [Supercharged Offers, LLC] (“Company”)
and the specific client who has signed up for our online services and has signed the attached client acknowledgement (“Client”) (Company and Client collectively the “Parties” and each a “Party”), and is effective as of today, or the day that the online service was initiated, whichever is earliest (the “Effective Date”).
WHEREAS, Company provides design, data, direct mail, digital, and marketing services and products in the real estate and related industries, including a personalized marketing strategy and campaign products and services, each as agreed upon by the Company and its client(s) (collectively, the “Company Services”);
WHEREAS, Company and Client collectively determined the Company Services that Client desires that the Company render, as outlined in products and services selection via online sign up.
WHEREAS, Company desires to render and provide, and Client desires to engage Company for the purposes of providing, the Company Services (as further defined in the online sign-up product selection);
WHEREAS, the Parties desire to enter this Agreement to set forth the terms and conditions which shall govern the relationship between the Parties including as may relate to the online sign-up product selection (defined herein);
NOW THEREFORE, in consideration of the foregoing recitals, the mutual promises, covenants and agreements herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. Scope and Term
(a) Initial Scope. The Parties acknowledge and agree that this Agreement shall set forth the general terms, conditions and obligations of the Parties’ engagement. The specific scope and Company Services to be rendered is set forth in the online sign-up product selection and subsequent email confirmation of selected services.
(b) Additional Products or Services. Upon completion of the Company Services set forth in the online sign up product selection related to the initial campaign creation and launch, the Parties may agree to add additional, continued, or expanded products services, such as more data and direct mailings (additional counties, zip codes, demographics), continue to utilize all campaign assets and move into additional phases of the campaign and market expansion; additional mailing strategies and offers, monthly maintenance packages for websites, email automation and phone, continued Google/Facebook Advertising and/or retargeting of same, and other Company Services, as the Parties may agree (collectively, the “Additional Products and Services”). In the event the Parties agree to any Additional Products and Services, such shall be set forth in additional online sign-up product selection/s. For the avoidance of doubt, upon execution of any Additional online sign-up product selection/s, all such Company Services to be rendered herein and all Client obligations related thereto, shall be handled in accordance with, and subject to, this Agreement.
(c) Term. The term of this Agreement shall commence on the online sign up Effective Date and continue until such time that the Company Services set forth in the online sign up product selection are completed for the initial creation and launch of the campaign, unless earlier terminated by either Party, with thirty (30) days’ notice to the non-terminating Party (the “Term”). Notwithstanding the foregoing, either Party shall have the option to terminate this Agreement, effective immediately, upon any of the following events: (i) non-payment; (ii) Bankruptcy; or (iii) Merger, acquisition; sale of business; material change in control. In the event of termination, for any reason, except for convenience by Company, Client explicitly acknowledges and agrees that notwithstanding any installment payment options, the Company Fee (defined below) is considered due and owing upon the Effective Date of this Agreement, and in the event of termination by Client, for any reason, Client shall still be obligated to pay any Company Fees in full, including any outstanding installment payments which would have been invoiced after the date of termination.
2. Services; Company Obligations. As further detailed herein, the Company shall provide to the Client the Company Services as agreed upon and set forth in the online sign-up product selection, including any Additional products and services chosen by the client, as applicable. Company shall use commercially reasonable efforts to provide the Company Services: (a) in accordance with the terms and conditions of this Agreement; and (b) in a workmanlike and professional manner.
(a) Initial Campaign. Upon Company’s receipt of the first invoiced payment (as further detailed in Section 4 herein) and completion of the Onboarding stage and data consulting sessions, Company shall commence the first of phases for the completion of the Company Services set forth in the online sign-up product selection. Depending on product selection of on-demand or full-service products, clients will be guided through the relevant phases for their service implementation. The first phase, consisting of the creation and buildout of the campaign and design of the marketing and reporting dashboard, takes four (4) to six (6) weeks, on average (collectively, “Phase 1”); provided however, Company shall not be responsible for any delays or additional time required due to circumstances out of their control, including without limitation, Client’s failure to respond timely or provide the necessary information and input. During Phase 1, the Company and Client agree to work together, as reasonably appropriate, for Company to render the Company Services in the scope and manner necessary to achieve the end product as set forth in the online sign-up product selection. Additionally, during Phase 1, Client shall be provided with updates, status, samples, and related oversight over the campaign to ensure it aligns with Client’s reasonable marketing goals and style. (collectively “Phase 2”). During Phase 2, Client shall be entitled to one (1) branding feedback review (if logo design is applicable), one (1) content feedback review, and one (1) design feedback review. During each of the foregoing, Client shall have the opportunity to provide additional input, requested changes, and raise any concerns, to be addressed by Company prior to Phase 3 (defined herein). Any changes requested by Client following these feedback reviews may be subject to an additional development change fee and/or may result in delay in Phase 2 completion and furthermore, any such design or development changes requested will be charged to Client at our designer and developer hourly rate. In accordance with the foregoing, the Company shall use its reasonable best efforts to implement any changes, as reasonably requested by the Client, as well as identify and resolve any issues therein. Phase 2 takes one (1) to (2) weeks on average where the Company shall prepare a soft launch, during which the initial mailing(s) are prepared to be sent and all digital assets can be tested in a live environment. Upon completion of Phase 2, Company shall prepare and facilitate the official and full “go-live” launch of the campaign, upon which the campaign start-up shall be deemed final and complete, as further detailed in the online sign-up product selection (collectively, “Phase 3”). Upon the initiation of Phase 3, the Company shall not be obligated to make any changes or edits to the campaign, provided however, the Company may make exceptions upon reasonable request by Client, if and as determined by Company, in its sole discretion. Clients using on-demand services will be subject to the specific elements relating to their service, as outlined above, and may experience a faster delivery time for on-demand services such as data and mailing only.
(b) Additional Terms.
(i) Campaign Platforms and Assets. Client agrees to give Company access to any URL information, hosting provider, Calendly, or other online tools required to set up the campaign. Furthermore, any campaigns funded through Credit Key will require Client to pay a % set up fee to Credit Key. This amount is set and managed by Credit Key and is in addition to and otherwise not associated with the Company or the Company Fees. The entire campaign assets (content, data, design etc.) shall be housed in a shared drive and shall be the property of the Client; provided however, any website designed by the Company shall be hosted on a Company platform. Client shall be entitled to seek edit access to their sites at any stage; provided that Client acknowledges and agrees that any errors that might result from their editing their own site may incur costs to remedy them, if required to be completed by Company. Notwithstanding the foregoing, the Company reserves the right to change or update any back-end technology (such as email automation or hosting), should a better solution or provider be accessed, at the Company’s sole discretion.
(ii) Mailings. Client campaign mailing volumes will be met based on Client’s County and location preferences. Mailing campaigns run in monthly on demand services or 6 month campaign plans with cycles of regular weekly or bi-weekly drops, depending on Client’s campaign guidelines. Client acknowledges and understands that counties cannot be changed once data has been extracted, transformed, and loaded. Any change to the data shall be at the discretion of the Company and at the expense of the Client. Some mail drops may be combined to ensure numbers are met for each mailing drop, provided however, Client understands that such drop numbers are not exact and may be adjusted due to data volume available and data cleansing, prior to each mailing. In the event of any missed week of mailing or delay, such mailing will be either combined for following weeks, or the campaign cycle extended, to ensure anticipated monthly volumes are met. In the event Client desires to pause their mailings, Client may do so for up to four (4) weeks without penalty, after which time Company shall be entitled to charge digital maintenance costs for hosting, website maintenance, website certificate checks, email automation, call tracking and ads incurred, above the online sign up product selection budget.
(iii) No Guarantee. Company cannot and will not guarantee marketing results, as they are determined by a number factors, including those which are in the complete control of the Client, including without limitation (all of which are the responsibility of Client): (1) knowing the area, geography, and demographic of the customers/audience to which the campaign markets; (2) knowing the market conditions in those areas and ensuring that offer calculations are at the desired level for that market; (3) responding to calls and emails or web form requests, or otherwise nurturing leads at all touchpoints, in a timely and efficient manner; and (4) ensuring there are systems and processes in place to handle anticipated volume.
(iv) No Refunds. The Company shall not be obligated to issue any refunds and no exception shall be made after the initiation of Phase 3 (to the extent the campaign kick-off has been started, or after the campaign goes live).
(v) Data and Promotion. Company is committed to protecting all Client data and will not re-use, re-sell, or use any deal-related information for its own gain. All deals and leads that come through the Client’s campaign are 100% owned by the Client; provided however, the Company reserves the right to promote any marketing designed for Client for Company promotions. This may include comments and feedback made by Client in interactions with Company in meetings such as Go Live calls, one on one review calls or feedback sessions. Clients may also be asked to submit reviews and testimonials from time to time.
(c) No Exclusivity. Company retains the right to perform the same or similar type of Services for third parties during the Term of this Agreement and after its termination.
3. Client Obligations. Subject to the terms and conditions of this Agreement, Client shall: (a) provide input, information, guidance, and other like data, as reasonably requested by Company, in furtherance of the Company Services; (b) provide any materials, documents, samples, or other information, which Client desires Company to utilize or otherwise include in the marketing campaign; and (c) use reasonable efforts to respond to any Company requests related to any of the foregoing, as well as be required for approvals, authorizations, or decisions that are reasonably necessary for Company to continue to design, build and finalize the campaign, or otherwise as necessary to render the Company Services in accordance with this Agreement and the Proposal, including any Additional online sign up product selection as applicable.
4. Fees and Compensation. The Parties acknowledge and agree that all fees and compensation due to Company as consideration for this engagement and the rendering of the Company Services related thereto, are and/or shall be set forth in the online sign-up product selection/s, as applicable (collectively, the “Company Fees”). Client acknowledges and agrees that any work to fulfill the online sign-up product selection shall not commence until the first invoice is paid in full and Company reserves the right to stop work if any amount of any invoice remains outstanding for more than ten (10) business days following the invoice date. Company shall be entitled to review and amend its Company Fee and pricing structure from time to time; however, any changes in Company Fees shall not be assessed on any current online sign-up product selection, but all future Additional online sign-up product selection may reflect such changes. Client acknowledges and agrees that the Company Fees are considered due and owing as of the Effective Date of this Agreement as evidenced in the online sign up acceptance, or upon the mutual agreement and execution of any Additional online sign up product selection ; provided however, if and as agreed upon by Company, Client may pay the Company Fee in accordance with any one (1) of the following installment plans:
(a) Payment in Full. Within 1 (one) day following the Effective Date of online sign-up product selection, the Company shall invoice Client for the applicable online sign-up product selection via a Company Fee, to be paid in full, due upon receipt.
(b) Six Month Installment. Within 1 day following the Effective Date of this online sign-up product selection and continuing for a total of six (6) consecutive months, the Company shall invoice Client for the Company Fee in six (6) equal installments, due upon receipt.
Pursuant to the foregoing, Client and Company agree that Client shall pay the Company Fee(s) in accordance with the online sign-up product selection schedule.
5. Confidentiality and Non-Disclosure. During the Term of this Agreement, each Party may have access to, or otherwise be provided Confidential Information relating to the other Party. For purposes of this Section 5, “Disclosing Party '' is the party disclosing such Confidential Information and the “Receiving Party” is the party receiving such Confidential Information. Receiving Party agrees to: (a) protect all Disclosing Party’s Confidential Information in a reasonable and appropriate manner to the same extent it protects the confidentiality of its own Confidential Information of like kind, but in no event less than a reasonable manner; and (b) use and reproduce the Disclosing Party’s Confidential Information only to perform its obligations and exercise its rights pursuant to the Agreement and the applicable online sign up product selection. The disclosure of Confidential Information pursuant to a subpoena or other validly issued administrative or judicial process shall not be a breach of the Receiving Party’s obligations, provided that the Receiving Party shall provide prior notice to the Disclosing Party of such disclosure if permitted by law and shall not disclose any Confidential Information not specifically required pursuant thereto. Each Party acknowledges and agrees that this Section shall survive any Termination of this Agreement and continue until such Confidential Information is no longer considered confidential, proprietary or trade secret, unless otherwise prohibited by law. The confidentiality, property, and proprietary rights protections available in this Agreement are in addition to, and not exclusive of, any and all other rights to the Disclosing Party, is entitled under federal and state law, including, but not limited to, rights provided under copyright laws, trade secret and confidential information laws, and laws concerning fiduciary duties.
6. Relationship of the Parties. The Parties explicitly acknowledge and agree that the Parties’ relationship will be that of an independent contractor, and nothing in this Agreement or any online sign up product selection, including any Additionally purchased products or services, should be construed to create a partnership, joint venture, or employer-employee relationship and Company, in its sole discretion, shall determine the method, details and means of performing the Company Services agreed upon between Company and Client pursuant to the applicable online sign up product selection.
7. Representations and Warranties. Each Party hereby represents and warrants that each of the following statements are true and accurate, and shall remain true and accurate during the Term of this Agreement: (a) each Party has the full power and authority to enter into this Agreement; (b) the execution, delivery and performance of this Agreement has been duly authorized and constitutes a valid and binding agreement of such party; and (c) the execution, delivery and performance of this Agreement shall not result in the breach of, or constitute a default under, or violate any provision of, any agreement or other instrument to which such party is a party.
8. Client Indemnification Obligations. Client agrees to indemnify, defend and hold harmless Company and its affiliates, vendors, employees, owners and partners from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties and reasonable attorneys’ fees and costs, that Company may incur as a result of Client’s material breach of this Agreement, including without limitation, resulting from non-payment, or Client’s infringement on third-party intellectual property rights.
9. Limitation of Liability. Neither Party shall be liable to the other Party for any incidental, consequential, exemplary, special, punitive, or lost profit damages to the other Party in connection with this Agreement, any online sign-up product selection, regardless of the form of action (whether in contract, tort, negligence, strict liability, or otherwise). However, the preceding sentence shall not apply to the extent that a Party engaged in intentional or gross misconduct with the intent to harm, a criminal act or conduct, a crime involving moral turpitude, gross negligence, grossly unprofessional behavior, or sexual misconduct or sexual harassment.
10. Attorney’s Fees. In the event of a dispute arising under or related to this Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its attorneys' fees and costs, including attorneys' fees and costs incurred in litigating entitlement to and the amount of attorneys' fees and costs.
11. Notices. Any notice, payment, demand, request or other communication required or permitted to be delivered or given by the provisions of this Agreement shall be deemed to have been effectively delivered or given and received as follows, whichever occurs first: (a) on the date personally delivered to the respective Party to whom it is directed, or by email or facsimile, upon confirmation of receipt; (b) five (5) business days after the date it is sent by domestic registered or certified mail, with postage and charges prepaid; or (c) on the first business day following the date of dispatch if delivered by a recognized next-day courier service, and addressed to the Parties at the addresses provided pursuant to this Agreement, or as a Party may direct with reasonable notice to the other Party.
12. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any Company Services or fulfilling any obligation pursuant to this Agreement or any Proposal(s), when and to the extent such Party’s failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) global, national or regional emergency, including pandemics; (g) shortage of adequate power or transportation facilities; and (h) other similar events beyond the reasonable control of the impacted Party; provided nothing in this Section 12 shall excuse a material default related to non-payment for Company Services rendered in accordance with this Agreement and the online sign up product selection.
13. Parties in Interest. This Agreement is made solely for the benefit of Client and Company, including its affiliates, members, investors, and assigns. No other person shall acquire or have any right under or by virtue of this Agreement.
14. Assignment. Neither Party shall assign any rights, or delegate or subcontract any obligations, under this Agreement without the other Party’s prior written consent. Any assignment in violation of the foregoing shall be deemed null and void. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable against each of the Parties and their respective successors and assigns.
15. Entire Agreement; Amendments; Severability. This Agreement constitutes the entire agreement and understanding of the Parties, and supersedes any and all previous agreements and understandings, whether oral or written, between the Parties with respect to the matters set forth in this Agreement. No provision of this Agreement may be amended, modified or waived, except in a writing signed by the Parties. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision, and if any restriction in this Agreement is found by a court to be unreasonable or unenforceable, then such court may amend or modify the restriction so it can be enforced to the fullest extent permitted by law. The section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this Agreement.
16. Counterparts. This Agreement may be executed, by online sign up and agreement of online terms in any number of counterparts, each of which together shall constitute one and the same instrument.
17. Applicable Law; Jurisdiction. This Agreement shall be interpreted and construed in accordance with the laws of Florida. Any and all claims, controversies and causes of action arising out of or relating to this Agreement, whether sounding in contract, tort or statute, shall be governed by the laws of the Florida, including its statutes of limitations, without giving effect to any conflict-of-laws rule that would result in the application of the laws of a different jurisdiction. Any action arising out of this agreement shall be brought exclusively in a court of competent jurisdiction located in Duval County.