Trademark Productions Master Terms & Conditions of Services
Last Updated 12/17/2021 — can be updated without notice
This document between Trademark Productions “TM” (and/or “we”/”our”) and you, the “Client” (and/or “you”/”your”) defines the terms and conditions and any express warranties in our working relationship. When you hire TM you agree to be subject to the following regarding your engagement with TM):
Responsibility to Participate
Client understands and agrees that TM will need participation from Client during your project, including but not limited to, content, images, feedback, direction, login credentials, or other information from the Client (“Client Deliverables”) during the course of the Client’s project, and in order to complete the Work Product and other obligations under this Agreement. The Client is required to provide all Client Deliverables as requested by TM and do so within seven (7) business days of the request, or on the agreed-upon date. Failure to meet the agreed-upon timelines and schedule of Client Deliverables by the Client may result in the project being paused, rescheduled, suspended, or canceled. All applicable fees for such an action will be due per the terms of this Agreement and must be paid prior to resuming the Project.
All Client Deliverables must be in the form and format designated by TM. TM is not liable for the failure of Client Deliverables in any form or format.
Payment Terms, Phases & Change Work Orders
Each project, the scope of work, estimate, or contract will include billing phases and or milestones with terms on payments. TM always requires a deposit for any work (“work agreement”) that we are being hired to do. Upon approval of said work agreement in writing or electronic acknowledgment, we will initiate the said billing terms. Any new requested work after the work agreement is approved by Client will be considered a revision or alteration and billed accordingly. Commonly, TM refers to these as “CWO’s” (Change Work Orders. Client must agree to said changes or alterations including scheduling and costs before any additional work will be completed. Furthermore, Client agrees to pay TM in accordance with the terms specified in each project, scope of work, estimate or contract, or CWO. All fees charged are non-refundable. in the event any payment to TM is not successfully negotiated, TM shall be entitled to recover from Client all costs, merchant fees, costs of collection, attorneys’ fees, court costs, as well as a return payment fee in the amount of 10%. The parties agree that the damages in such an event are difficult to estimate and that the 10% fee is a reasonable estimate of the damages incurred, in addition to those specified above, and not a penalty. TM reserves its rights to defend such charge-backs and recover the original monies from the card issuer, bank, and/or Client. Client shall pay, or promptly reimburse TM for any and all out-of-pocket expenses, including, without limitation, travel and travel-related expenses, incurred by TM in connection with the performance of services provided that all such expenses are pre-approved by the Client. Unless otherwise agreed in writing, all invoices are due upon receipt.
Interim / Alternate Work Product
It is understood that the finished, Client-approved product(s) are the “Deliverables” (as defined herein). Unless otherwise stated and agreed to in writing “Work Product” (as defined herein), including any derivations and prior versions thereof, not selected or chosen by Client remains the full property of TM. All Work Product shall remain the property of TM until all monies are paid in full under the terms specified in each project, scope of work, estimate or contract, or CWO. During any time that Client is using the Work Product prior to final payment being made, TM grants client a revocable license to use any Deliverable and/or Work Product only for as long as Client is not in default and may revoke the Client’s license to use at any time for current or past work product in their possession.
Client must identify and select an individual that will be their “point of contact” who will work with TM and serve as the authorized agent to provide authorization for work, agree to, sign-off, and receive files on behalf of the client. Unless specified in writing, any requests made by Client’s agent(s) (employees or contractors on behalf of the client) will be considered a client-approved request for services or CWO. Unless otherwise specified in writing we will consider any requests as authorized and bill appropriately, and Client will assume full responsibility for payment of all charges for said development, advertisements, and services, whether placed individually or through your authorized agents or delegates. If Client wants to limit approvals, you must inform us of any such limitations. By your signature in agreement, you confirm that you are authorized to bind your company or firm to the terms set forth in this Agreement, that all information you have submitted in connection with this Agreement is complete and correct, that the terms set forth herein become a binding contract upon you, your company or your firm and that you and your company or firm each have the necessary financial ability and willingness to pay for all goods and/or services promptly and in accordance with all applicable terms and conditions. Accordingly, Client acknowledges that Client will pay for any and all charges billed to Client and if in a term contract, through the end of the term. Client will not be entitled to a refund of any amounts previously paid.
Project Delivery & Launch
Final payment regarding any work agreements, launch or delivery of said project files to the client or to the public, whichever is earliest, signifies consummation of the contract and is deemed “approved” by the client and “delivered” by TM unless client objects in writing within 10 days of consummation. If no objection is received then your approval is final. Any work required or requested beyond the consummation date is billable unless otherwise specified and agreed to in writing by TM, except where such work is funded under a maintenance agreement. In such a case the maintenance agreement will control.
Unless otherwise agreed to in writing, and conditioned upon the negotiation of any payments due from Client as a result thereof, TM does disclaims any and all reasonability, and liability thereof, for the archiving, storage, backing up, or other preservation efforts with respect to Client’s Work Product and/or Deliverables. In the event that Client needs an archive created or restored, and that TM has the capability to restore or provide an archive, the Client agrees to compensate TM for time, materials and any associated fees with its procurement or delivery at TM’s then-current rates.
In the event Client engages TM to archive and/or otherwise back up any Work Product or Deliverable, the parties will agree on a schedule which such archiving and/or backup will occur. Parties agree that TM sole obligation will be to restore the last-archived and/or backup version of the agreed-upon content and that TM will have no liability for any content after the last-current backup. Client understands and agrees that all archiving and backups are provided by a third-party and that TM is not responsible, in whole or in part, from such third-party breaches or failures to archive or backup the agreed-upon content except to the extent that such failure is directly caused by TM. Client is encouraged to have multiple backup vendors with respect to its project.
Intellectual Property & Third-Party Assets
You will own the Deliverables upon full payment of all outstanding invoices. Deliverables are the website, and the assets we build for you, but not the code and methods that were used to produce it (“TM Work Product”) the ownership of which is retained by TM. TM assigns an exclusive, non-transferable license of TM Work Product produced specifically for Client upon payment in full of all outstanding invoices. If Client is under a maintenance agreement, TM retains all rights to TM Work Product until the end of the term of the maintenance agreement or if Client fails to pay under the terms of the agreement, the assignment shall be considered revoked. TM retains all original rights of any work product without limitations or restrictions. Copyright of the completed web designs, images, pages, code, and source files created by TM for the project shall be with the Client upon final payment and only by written agreement. Without an agreement, ownership of designs and all code is with TM. Client agrees to grant TM an exclusive, non-transferable license of the Deliverables.
Client agrees not to use the Deliverables or Work Product for resale or redistribution and acknowledges that any redistribution or resale may be subject to copyright(s) from third parties and must be approved by TM and specified in original agreements. All third-party licenses for software, code, copy, video, sound, or images (assets) are the sole responsibility of the client. TM does not issue any copyrights or licenses for third-party licensed products unless stated in the original agreement beyond a single non-transferable use if available. Client acknowledges such limitations of TM’s rights and if a client wishes to use any said third-party assets for other purposes client will be responsible for coordinating the payment of appropriate royalties, fees, and costs of licensing.
Client represents and warrants that it has all intellectual property rights and authorizations with respect to any information provided by Client including, without limitation, Client Deliverables.
Client represents and warrants that all material supplied by the Client is owned by the Client or that the Client has a legal right to use the material including, without limitation, all Client Deliverables. You must obtain all necessary permissions and authorities in respect of the use of all copy, graphic images, registered company logos, names, and trademarks, or any other material that you supply to us or that we are hired to procure for you to include in your website or web applications. All materials supplied by the Client must be in a form and format designated by TM and must not, in any manner, compromise TM’s Work Product or Deliverables. To the extent permitted by applicable law, Client agrees to indemnify and hold TM harmless for any losses, damages, claims, or disputes arising out of Client’s breach of the terms of this Agreement, the use of materials provided to us by Client, or any third party assets that may be procured for any project by the client or by TM that is claimed to be or found to be protected by copyright or license, either domestic or international laws including but not limited to software, code, copy, video, sound or images (assets) including, without limitation by paying for all of TM’s legal and employee fees associated with the preparation, defense, fines, judgments, or settlements associated with the claim or dispute. TM has the right to charge the Client its standard hourly rate for each employee’s involvement in addition to any other costs associated with the preparation, defense, fines, judgments, or settlements associated with the claim or dispute. Client is responsible for complying with all relevant laws relating to e-commerce and international copyright and trademark laws, and to the full extent permitted by law will hold TM harmless, protect and defend and indemnify TM and its representatives, employees, or other agents from any claim, penalty, tax, tariff loss or damage arising from your or your client’s use of Internet electronic commerce or any materials protected by copyright and trademarks.
Non-Solicitation of Staff
During the term of any agreement with TM and for two years following the consummation or termination thereof, Client, their affiliates, agents under their control, owners and employees will not, without TM’s express written approval, hire, solicit, engage or attempt to solicit, hire or engage directly or indirectly, any individual either employed or contracted by TM or any former employee or contractor who remains subject to the terms of the Non-Disclosure, Confidentiality and Non-Compete Agreement with TM. This includes contacting and or contracting the individual to utilize the services of the former employee or contractor. Because the actual damages that TM would sustain in the event that the client actually hires or successfully solicits a current or former TM employee or contractor, or make attempts to solicit, hire or engage directly or indirectly, the employee(s) or contractor(s) or another third party would be difficult to ascertain, the parties agree in good faith that the client will pay TM, as liquidated damages, a sum equal to the annualized compensation over the immediately preceding twenty-four (24) months, plus twenty-five percent of the annualized compensation of that employee(s) or contractor(s) at the time of breach or conclusion of employment for former employee(s) or contractor(s). The parties involved acknowledge and agree that this is a good faith attempt to estimate the actual damages that will be sustained in the event of a breach and is not an attempt to impose any penalty. This shall not limit the right for TM to seek an injunction or other equitable relief or to seek additional monetary damages by TM in excess of the agreed-upon liquidated damages stated.
Suspension & Termination
Client’s failure to pay for services on or before the payment due date may result in suspension or termination of said services or agreement without notice. This means that TM, without liability, may hold the delivery of production materials and software code, and other data, and may suspend the performance of any and all services to Client pending payment of all charges that are outstanding. All unpaid balances are subject to a 7% per annum finance charge, or the highest rate allowable under the law, whichever is less. Services may be reinstated after the Client has made payments in full along with reinstatement fees to restore service in the sole discretion of TM.
In the event that Client requests that TM temporarily refrain from working on a project, or if Client delays the schedule of work for any reason, (“Stop Work”), and such Stop Work, individually or collectively, lasts for a period of at least thirty (30) days, Customer will pay TM a fee of Five Hundred Dollars ($500) as a condition of restarting any work. The stall date will be considered the 30th day following the last day work was performed by TM. Any restart of the project will be at the sole discretion of TM. All unpaid balances, including any time for work performed that has not been billed to you, are due immediately. “Stalled” and “paused” refer to any instance where TM is awaiting the Client’s input, approval, submission of information or documentation, or anything else that prevents TM from completing the work. Any time frames or estimates that we give are contingent upon your full cooperation. During development there is a certain amount of feedback required in order to progress to subsequent phases and any delay in providing requested feedback will be considered “stalled” or “paused” by you.
After 90 days of the project being “stalled” or “paused”, the project is considered “canceled”. If the project is canceled by the Client, the project will be removed from our systems, and you will be charged a project “kill fee” of 10% of the project’s value or $500.00, whichever is greater. The “kill fee” will be due immediately and be in addition to any sums previously paid by the client so long as it does not exceed the overall price of the agreement. Any restarting, rescheduling or reconsideration of the project will be at the sole discretion of TM.
The parties may agree to terminate the agreement after work has commenced. If Client elects to terminate relationship they must provide 30-day written notice of agreement termination by certified mail, return receipt requested to our corporate offices, and send a copy to [email protected] to receive acknowledgment and will be responsible for all associated fees with termination, including but not limited to the “kill fee”.
At the termination of any agreement between Client and TM for any reason, all files, databases, security certificates, and email may be removed from the server(s) and may or may not be retrievable from backup sources. This means your project files may be lost, deleted and not recoverable. You are responsible for maintaining your own backups with respect to your website and we will not be liable for restoring any client data or client websites except to the extent that such data loss arises out of a negligent act or omission by TM. If retrievable, the client will be subject to a four-hour reinstatement of files fee at our standard hourly rate then in effect. In the event that you have a larger system and more than four hours is required, you will be required to provide approval for additional time before we proceed. Suspension/termination of any services is in addition to any other remedies available to TM to collect payment.
Ownership of Domain Names and Web Hosting
If we obtain any domain name registrations for you we will supply your account credentials that we purchased when you reimburse us for any expenses that we have incurred related to obtaining the domain name. TM reserves ownership of the domain name and website until such time as your financial obligations with TM are paid in full under the terms of the entire Project.
Privacy, CyberSecurity, GDPR
TM respects the privacy of its clients. TM will not monitor, edit or disclose any personal information about your accounts, including hosted content, without your prior consent, unless TM has a good faith belief that such action is necessary to (a) comply with legal process or other legal requirements of any relevant authority; (b) protect and defend the rights or property of TM; (c) enforce the terms of this Agreement or these Terms and Conditions, or (d) protect the interests of users of TM’s services.
TM is not responsible for any losses or damages which may arise, in whole or in part, as a result of any cybercrime, third-party intrusion, malicious code, or any other losses or damages which may arise due to, in whole or in part, the intentional, negligent, or criminal acts or omissions of Client or any third party not under TM’s control. TM encourages Client to purchase and maintain a cybersecurity policy insuring Client against all such threats.
If you are from the European Economic Area (EEA), TM’s legal basis for collecting and using the personal information described in this agreement depends on the personal data we collect and the specific context in which we collect it.
TM may process your Personal Data because we need to perform a contract with you, you have given us permission to do so, the processing is in our legitimate interests and it is not overridden by your rights, for payment processing purposes, to comply with the law
Severability & Enforcement
The terms and conditions are severable; if any of them are held to be illegal, invalid or unenforceable, in whole or part, the legality, validity, and enforceability of the remaining terms and conditions shall not be affected or impaired. The failure of TM to enforce any term or condition shall not be construed as a waiver or limitation of its rights to subsequently enforce and compel strict compliance with every other term or condition.
Limitation of Liability
If TM is to be found liable for loss or damage, regardless of whether the claim is based on contract, tort, strict liability or otherwise, the liability shall be limited to the value of the services causing such loss or damage and shall not exceed the aggregate amount due under the agreement; said liability shall be treated as liquidated damages and not as a penalty, and this remedy shall be exclusive. TM shall not be liable for any loss of any kind, consequential or otherwise, arising from inaccuracy, omissions or errors in carrying out the work, or by a delay in completion. In no event shall TM be liable for any consequential, incidental, direct, indirect, special, exemplary, punitive, or other damages of any nature (including without limitation, loss of client’s business, revenues, profits, business interruption, loss of business information, cost of substitute services, or other pecuniary loss), or for any claim against the client by any other party, even if TM has been advised of the possibility of such damages. Furthermore, TM shall not be held liable for complications, integrations and functionalities or integrity of previous work product for any unknown updates that have or could arise from third-party frameworks that TM uses for customers products. This includes but is not limited to content management systems that do or do not include commerce, free or paid plugin(s), API’s (application protocol interfaces, security breaches and said consequences, applications and released updates to the said software or applications.
TM is not responsible for, and disclaims any and all liability with respect to, Client Deliverables, data or other materials provided by Client (including any person under Client’s control or whom Client contracted with), or the malicious actions of any third party.
TM will perform all work in accordance with generally accepted professional and technical standards. Due to the ever-changing landscape of technology and the World Wide Web, TM does not warrant the development, functionality or marketing of any said work product or associated third-party products or services, unless otherwise specified in writing. Specifically, TM disclaims all warranty obligations which may arise as a result of, in whole or in part, Client’s, including anu person under Client’s control, intentional or negligent actions or omissions or any functionality with respect to any materials provided by Client or any third party. TM provides services based on client specifications or selected services, vendor feedback, technology constraints and the collaboration arising thereunder. To the extent that any changes imposed by any third party adversely affect the Deliverable, TM shall have no obligation to update or modify the Deliverable except under separate agreement. This includes any changes by any third party associated with Client as well as any independent third parties including, without limitation, web browser developers.
TM expressly disclaims, whether express or implied, any warranties of merchantability or fitness for a particular purpose with regard to its service including any and all oral and written information and communication about such services. On the basis of creating work for hire, TM is not responsible for any defects, quality issues, compliance or integration with other services or products that include third-party plugins and modules whether installed at the request of the client or, in the recommendation of TM, from a request from the client for any errors in content or omissions in any material provided by the client. To the best of its ability, TM will seek to provide solutions that maximize the quality of its product(s); however, the client acknowledges that specific request(s) of techniques and methods may impact the deliverable(s). In addition, TM supports warranty issues based on specifications provided and technology available at the time of launch or delivery. As part of doing business with TM client understands that technology changes extensively and that TM can only warranty its work at the point of its release. It is imperative that the client tests and validates the functionality and meeting the specifications of the project prior to the launch or delivery of the said product(s). TM’s expressed warranty is for 30 days from launch or delivery or said product(s) only pursuant to technical errors made on the part of TM; all other requested changes, edits, modifications, additions or deletions will be subject to a CWO with appropriate billing terms. Any warranties granted are non-transferable and are not effective in instances of misuse of the deliverables, breach of software or service by third-party that exceed the rights granted under this or other operative agreements.
The validity and enforceability of any agreement between the parties will be interpreted in accordance with the laws in the County of Oakland, the state of Michigan in the United States of America. In the event of TM’s enforcement of any term or condition, TM is entitled to all costs, including reasonable attorney’s fees, together with appropriate costs and interest, related to such enforcement in collecting any sums owed to TM.
These terms and conditions constitute the entire agreement between both parties and there are no representations, warranties, covenants or obligations except as set forth herein. These terms and conditions apply to the sale of software development, development and marketing/or services and supersede all prior and contemporaneous agreements, understandings, negotiations and discussions, written or oral, of the parties hereto, relating to any transaction contemplated by the terms and conditions. Application of these terms and conditions may be amended only in writing executed by the parties affected by such an agreement.
Discontinuation of Services
TM may, upon 30 days’ advance written notice to the Clients, elect to discontinue any individual service from time to time. In these events, TM will provide details and options for customers to consider and determine best suited for the operation and maintenance of their product(s) or campaign(s) management.
TM will not be liable to return to you any artwork or Client Deliverable.
We reserve the right to change these terms and conditions and the nature of our services, which we have agreed to provide to you by giving you written notice. This notice will appear on our website. You may not transfer any of your rights or obligations under this Agreement to anyone else without our prior written agreement. If you wish to communicate with us, your letter must be sent to our legal office at 28411 Northwestern Hwy, Suite 500, Southfield, Michigan 48034 C/O TM Productions: to the attention of M. Fedor, by means of certified mail. Any other methods apart from email with proof of sending will be classed as unsent.
These terms and conditions together with the proposal, work orders, change orders and any additional attachments form the whole of our agreement.
Schedule A – Website Development & Design Services
Client acknowledges that it is the Client’s responsibility to maintain their website after it has been delivered, including, but not limited to, the security, code, software, functionality, hosting environment, domain name, SSL certificates, or any other item or task that is needed to maintain a fully functioning and secure website, unless otherwise agreed to in writing and compensated via a maintenance agreement with TM. The client understands and acknowledges that TM is in no way responsible or liable for changes or the effects of changes made to the website, its software or parts, by the Client or a third party.
TM will develop the Client’s website to display and function properly in the latest versions of the most popular browsers, normally consisting of the top 90-95% of browser usage. These browsers are commonly the newest versions of Chrome, Firefox, and Safari at the time of project code development near completion. TM understands that some clients may need support for older or alternative browsers, upon such a request from the Client, and for an additional fee (at TM’s discretion), TM will do its best to ensure that the website will function and display as best as possible, normally utilizing “Graceful Degradation” (as defined herein). The client acknowledges that many modern technologies do not always function or display properly in older or alternative browsers and that the website may not function or display exactly the same in these browsers. The client acknowledges that any effort to properly render these websites in older or alternative browsers is based on best efforts and that there are no guarantees about exact functionality or display. TM offers no standard support for Microsoft Internet Explorer or Edge in specific and warrants no developed product to perform as intended on those internet browsers, however, it can do so for an additional fee outside of any work estimate previously quoted.
TM will make reasonable efforts to deliver the Work Product substantially in accordance with the delivery schedule as set forth in this agreement. The actual project development timeline will be determined upon the timely approval and delivery of the design, content, and any other approvals, information or assets needed by TM.
When completing maintenance or changes to a website, software, design comps, other assets created or controlled by a third party, TM has a reasonable expectation that these elements were created within the same best practices and standards as the Work Product that TM completes. However, TM sometimes finds that these third-party assets were inadequately constructed or created, which results in additional time needed to complete our tasks. The client understands that all estimates, Work Products, and results of this type of work are subject to change and are strictly best-effort. In the event that additional time is needed to complete tasks with third-party assets or information, or that working with these assets prevents TM from completing the Client’s objectives, the Client will be notified by TM. The Client is responsible for the costs of any time used to research, communicate regarding or modify these assets in an effort to complete the Client’s objectives, up to and including the original estimate provided to the Client by TM. If additional time is needed to complete tasks with these third-party assets, the Client will be notified prior to reaching the estimated budget, and will be required to approve this time in writing via an email or CWO, and is responsible for any related costs.
It is the Client’s responsibility to maintain its website and associated assets after it has been delivered, including, but not limited to the security, code, software, functionality, hosting environment, domain name, SSL certificates, or any other item or task that is needed to maintain a fully functioning and secure website, unless otherwise explicitly agreed to in writing and compensated via an agreement with TM.
The client is responsible for providing TM with all content, imagery, feedback, and approvals at various points throughout their project, for the completion of their project, unless otherwise agreed to in writing or specified in this agreement. This includes all words, pictures, videos, logins, access to information, opinions, feedback, or other assets as needed by TM in the completion of the Work Product. Manipulation of images or other assets provided by the client will be charged on a per-hour basis unless included in the proposal. Client acknowledges that their timely participation is needed in order to complete their project and that failure to provide such feedback, confirmations, acceptances, or assets within the timeframe requested will result in their project being delayed, stalled, paused, rescheduled, or canceled, per the terms of this agreement, and at TM’s discretion.
Before proceeding with the development phase, and during the development phase, of the Client’s website, TM will require a signature on various approval documents or other written confirmations, including but not limited to design approval and content approval documents. The client understands and acknowledges that the development of the project will not proceed without these written authorizations as requested. Upon receiving these authorizations, the items that were approved in such a document are “accepted to be built” and “locked-in” and cannot be changed, without the issuance and acceptance of a Change Work Order and a new estimate of fees for the completion of those changes and/or items that are outside of the project’s explicit scope. TM will estimate all Change Work Orders at its then-current standard hourly rate.
Schedule B – Custom Web Software Development Services
Custom software development is defined as any custom coding, integrations, and/or interactions with third-party software. This is typically an integration or custom-developed software to achieve a set of pre-defined goals and objectives for the Client, as opposed to a public-facing website. This service is subject to the same terms as those defined in Schedule A – Website Development and Design Services. In addition:
In most cases, and at TM’s discretion, prior to engagement in this type of project, TM will require that the specifics of the software and these integrations be defined in a software scope document prior to development. The development of this software scope is traditionally undertaken over a period of time and involves several meetings with the client, research, planning, and ultimately agreement between TM and the Client about how the custom web software will be built and how it will function.
Prior to the development of the custom web software, the Client must fully review and agree to the software scope document, acknowledging that the deliverables described are complete and including the exact details of what the Client wants to be created/built. No assumptions are to be made in regards to the functionality, scope, inclusions, exclusions, or details of the software development project by either party. The software scope document is customarily a separate Work Product and will be estimated and charged for as such. Upon acceptance of the software scope document, TM will provide the Client with a separate estimate for the development of the project.
In some cases, and primarily with smaller development projects, TM reserves the right to receive details of a custom software development from their Client in the form of email or other written form. Submission of these details by the Client and acceptance of those details by TM holds the same purpose and intent as a software scope acceptance. As such, the deliverables defined therein will be estimated and treated as the fully inclusive request for services and the details of the developments to be performed.
In the event that the requirements change from the approved software scope, those items will be treated as Change Work Orders and be estimated as project changes.
The Client understands and acknowledges that due to the complexities of these types of projects, even seemingly small changes may have a major impact on the overall development of the project and/or work product that has already been completed; sometimes requiring completed work product to be discarded or re-engineered to accommodate for those changes. As such, TM will make best effort to provide the Client with accurate estimates for any change requests by the client to the project, and the client acknowledges and agrees that these estimates may change in the event that the requested changes have a larger impact on the development or completed Work Product than anticipated. Any changes to these estimates will be provided to the client for additional approval before proceeding.
All custom software development projects are estimated and completed based on the number of hours estimated, multiplied by TM’s standard hourly rate. The client will be notified if and when more than 90% of their project’s estimated budget is utilized, and informed if any additional budget is needed for the completion of the deliverables. Based on TM’s experience, most estimates are accurate within 10% +/-, barring any unforeseen circumstances, lack of information or clarity from the Client, or change requests.
TM is not responsible for the effectiveness, longevity, security, or interoperability of any third-party service or product utilized in the development of the custom software project.
Schedule C – Website Maintenance & Retainer Services
Website Maintenance and Retainer Services (“Retainer Services”) are defined as any website maintenance, social media management, search engine optimization (“SEO”), search engine marketing (“SEM”) management, marketing, consulting, or other services that are performed by TM on a residual basis for its Clients.
Clients engaged in Retainer Services with TM have an allotted time to be utilized in each time period, typically a month, in which to have specific tasks, objectives, or types of work completed. The tasks, objectives, or types of work to be completed differ by Client and will be defined within the external agreement (“Proposal”) to which these terms are bound.
TM will make best-effort to utilize the Client’s entire Retainer Services time each month through Work Product requested by the Client, changes to the Client’s website, software, or assets that TM believes to be beneficial to the Client’s objectives, competitive research, performance analysis, and the like.
As with any project, TM will occasionally need feedback and direction from the Client on how to best utilize this time. TM will also make an effort to communicate ideas, goals, plans, completed Work Products, and work effort to the Client whenever necessary. In the event that TM is unable to contact the Client, get timely feedback, have a means for consistent communication, receive approval for work, or receive additional ideas of work to be completed, TM is under no obligation to utilize the Retainer Services budget in full. Upon written request, TM will supply all Retainer Services clients with a monthly report that documents how their Retainer Services time was utilized. This report will be completed with a portion of the Client’s retainer time and will take 30-60 minutes to complete.
Payments for all residual and retainer services are due on the 1st of the month in which the services are to be performed. TM invoices all Retainer Services and other residual services one month in advance of the services to be performed, in order to provide the Client enough time to pay for their services before the 1st of the month. In the event that services are started after the monthly billings have been completed, an invoice will be issued immediately and is due upon receipt.
Each Residual Services and retainer agreement is for a specified duration, typically 12 months, unless otherwise specified in writing. Upon agreement, the Client is responsible for the entire duration and amount of the agreement. In exchange, a discounted hourly rate may be made available to the Client for this commitment and any other work, above and beyond the agreement, for the duration of the agreement. Upon agreement expiration date the agreement will auto-renew with the same services, rates, and terms and conditions. Beyond the initial agreement’s term, thirty-days written notice is needed by the client to discontinue any residual or Retainer Services. Early cancellation of a contract imposes a 1-month service fee at termination.
TM may offer its retainer clients a discounted hourly rate for their Retainer Services and any work that is completed above and beyond the retainer agreement, for the duration of that agreement. The hourly rate agreed to in that agreement will remain the Client’s hourly rate until contract expiration, and month-to-month after agreement expiration, until such time that TM modifies its hourly rates. After agreement cancellation and at such a time that TM modifies its rates, TM will provide the Client with at least thirty days written notice of a rate modification. The Client will have the opportunity to renegotiate a new Residual Services Agreement at this time.
In the event that the Client requests additional, or different services during the Residual Services Agreement’s duration, TM, at its sole discretion, may negotiate a new agreement, or amend an existing agreement, with the Client. This renegotiation may include a rate change based on the services requested and the size of the retainer.
Schedule D – SEM (search engine marketing) and Marketing Services
TM agrees to provide to the Client the marketing and search engine marketing services (“Marketing Services”) as outlined and detailed in the external agreement/Proposal. TM will utilize its experience and the proper parties to complete any and all services as requested under this agreement and to the best of its ability.
TM makes no warranties, express or implied, with respect to the Marketing Services, including without limitation any implied warranty of reliability, usefulness, merchantability, and fitness for a particular purpose, non-infringement or those arising from the course of performance, dealing, usage or trade.
The client acknowledges that search engines and other third-party services, including, but not limited to, email marketing programs, advertising platforms, social media networks, and the like, may, at any time, change their methods, techniques, protocols, algorithms or policies. As such, Client acknowledges that TM cannot and will not guarantee any particular result for its marketing efforts, including, but not limited to, profitability, search engine ranking, effectiveness, return on investment, or any other metric of measurement.
Client further acknowledges that TM is not responsible for the consequences from any such changes by third-party services or service providers, including, but not limited to loss of ranking, traffic, sales, public attention, costs, conversions, search engine appearance, account performance, account suspension, backlinks, and potential toxicity, changes to website code, services provided by former service providers or Client agents, etc.
TM will make the best effort to communicate any potential issues to the client as that information is identified and becomes available. TM will not engage in any methods, practices, or techniques that are against the terms of service for any of these third-party services, including what is commonly referred to as “Black-Hat SEO”. The Client agrees to do the same, and to follow all third-party terms of service, including, but not limited to, the CAN-Spam Act of 2003 and Google’s terms of service.
In addition, the Client also represents, warrants, and agrees that all information communicated as a part of their marketing efforts and through their website:
- shall not include any unlawful, fraudulent, deceptive, misleading, defamatory, libelous, harassing, hateful, harmful, threatening, abusive, tortious, or pirated material of any kind;
- shall not violate or infringe upon any patent, trademark, trade secret, copyright, or other intellectual property rights of any third party;
- shall not violate any third party’s right of confidentiality or privacy under any federal, state, or local law;
- shall not contain or facilitate the transmission, downloading, uploading, installation, or implementation of any computer virus, worm, spyware, or other computer code, files, or programs designed to interrupt, destroy, limit or interfere with the functionality of any computer software, hardware, or telecommunications service or equipment;
- shall not be used for any “mail bombing”, SPAM, or “denial of service” (DDOS) attacks;
- shall not be used to remove or export from the United States any services, product, technical data, or other information in violation of any restrictions, laws, or regulations of the United States or any other applicable country; and
- shall not violate any applicable law.
Any violation of this Section shall result in immediate termination of the Customer’s right to use the TM network, provide grounds for the immediate termination of this Agreement by TM and subject the Customer to liquidated damages.
Schedule E – Website Hosting, Domains, and SSL Certificates
TM is not a domain registrar, website hosting company, or SSL certificate provider. All such services are facilitated through third-party services, and these services are provided to the Client as an ancillary service. By utilizing any hosting or SSL services, you agree to be bound by the terms of our third-party provider, Liquid Web, available at https://www.liquidweb.com/.
Clients who choose to host with TM will be hosted on one of the third-party servers that TM leases through service providers designated by TM These servers have individual uptime guarantees, SLAs (Service Level Agreements), and dedicated teams at the third-party provider to monitor the performance of the equipment and ensure that it remains online. TM also monitors these servers during normal business hours and uses reasonable efforts to keep these servers running efficiently and without interruption. In the rare event of a server outage, TM and the third-party website service provider will undertake reasonable efforts to return the server to normal operating levels as quickly as possible.
TM and its third-party service providers keep the servers’ operating systems, software, and any necessary hardware up-to-date, on a commercially reasonable basis considering the operating necessities of the websites on that server. While TM may undertake efforts to backup any data hosted on any server for its own purpose, except as otherwise agreed by TM and Client, TM disclaims any and all responsibilities with respect to backing up and/or archiving Client’s website or data. In the event that TM is contracted to backup and/or archive Client’s website or data, Parties agree that TM sole obligation will be to restore the last-archived and/or backup version of the agreed-upon content and that TM will have no liability for any content after the last-current backup. Client understands and agrees that all archiving and backups are provided by a third-party and that TM is not responsible, in whole or in part, from such third-party breaches or failures to archive or backup the agreed-upon content except to the extent that such failure is directly caused by TM. Client is encouraged to have multiple backup vendors with respect to its project.
The Client acknowledges that many security breaches, “hacking” attempts, speed issues, network connectivity issues, resource allocation, and other common issues with these types of environments are outside of TM’s control. In the event of such an occurrence, TM will make reasonable efforts to remedy the issues and return the server to full operating capacity. At times, this may involve removing an offending website or files or scripts from that server, including Client’s. In such a case, TM has the right to remove the website and any offending scripting, code or otherwise disable a website, in full, or in part, to prevent further damage to the Client’s website, the server, or other websites on that server. TM will notify the client of any such issue as soon as it is aware, and communicate the remedy to the client as soon as feasible.
Hosting is offered by TM to its clients on a month-to-month basis unless the Client has their own dedicated server, in which there is a minimum commitment of 12+ months. In either event, and upon conclusion of any commitment, at least thirty days of written notice is needed to stop hosting services with TM. Hosting charges will be invoiced to the client one month in advance of the month in which services are to be performed. Payments for hosting are due on the first of the month for the month in which hosting is to be performed. In the event that hosting is begun mid-month, an invoice will be presented for that month’s hosting charges and is due immediately.
TM is not a domain registrar, meaning that domains are not registered directly with TM. When domains are registered through a third-party service with TM, TM will make the best effort to monitor the domains for expiration and update payment information for renewal. However, it is ultimately the Client’s responsibility to ensure that all of their domains and other property are properly renewed, registered, paid, and accounted for. TM recommends that the Client registers or renews domain names for an extended period of time to minimize any short-term renewal issues.
SSL certificates are needed on any website that is conducting business that contains sensitive information. This includes websites with logins, except for Content Management Systems, eCommerce websites, or any website that is collecting sensitive information such as credit cards, social security information, or personally identifiable information from its users. SSL certificates must be renewed at their expiration, typically every year. TM will purchase and install an SSL for any user that needs or requests it for a fee. These fees are to be paid by the Client and are due immediately upon receipt of the invoice.
TM is not responsible for the enforcement or compliance of any law, regulations directive or specific details pertaining to the Client’s specific industry or business, including, but not limited to; HIPPA compliance, PCI Compliance or SEC regulations. However, upon receiving a request from the Client for assistance in meeting these standards, TM will assist the Client as much as possible, and this may be done at an additional cost. In an effort to protect both TM and its Clients, TM will not store credit card information, social security information, or any other highly sensitive information on its servers, without written acknowledgment and request by the client. TM is in no way liable for the storing or accessing of such information, and the Client agrees to hold and protect TM harmless in the event of any legal action resulting from such a request. TM assumes no responsibility and the Client agrees to hold TM harmless from any liability in regards to domains, SSL certificates, server security, and uptime.
Hosting Hardware Replacement Service Level Agreement – Dedicated Services Only
Trademark Productions guarantees, through its’ data center, managed provider that in the event of a dedicated server hardware failure, the faulty hardware will be replaced, in most cases, within 60 Minutes of identifying the problem. In the event that this guarantee is not met, Trademark Productions will issue a credit for two times the actual amount of additional downtime recorded by service monitoring logs. The amount of compensation may not exceed the customer’s monthly recurring charge. This guarantee does not include the time it requires to perform additional software-related maintenance, including rebuilding web accounts from backups, cloning hard drives, reloading the operating system, reloading and configuring applications, or rebuilding RAID arrays.
Hosting Network Uptime Service Level Agreement – For all Services
Trademark Productions does not make any uptime guarantees with respect to any web sites or services; any and all such guarantees are made by and between you and your service provider.
Hosting Network SLA Exclusions
Many possible situations are completely beyond the control of Trademark Productions and therefore are not in the scope of this SLA. These situations include:
- Scheduled Network Maintenance – occasionally network maintenance will be required. Trademark Productions, through its’ data center, the managed provider will undertake commercially reasonable efforts to minimize and avoid downtime during this maintenance. You will receive prior notification of upcoming maintenance at the e-mail address we have on file. Scheduled maintenance periods are not eligible for SLA credits.
- Hardware Maintenance – on rare occasions, the hardware in your Dedicated Server may need maintenance or replacement. Trademark Productions, through its’ data center, the managed provider will undertake commercially reasonable efforts to minimize any downtime in these situations per our hardware replacement SLA. Any downtime incurred as a result of this maintenance will not be counted towards our network SLA.
- Software Maintenance – an important part of managing a Dedicated Server is keeping the software up to date. If you choose to have Trademark Productions manage your server, through its’ data center-managed provider, occasional software updates will be required to address security or performance issues. Usually, you will experience little or no downtime in these situations, but we cannot guarantee a specific amount of time in all situations.
- Malicious Attacks – if a third party not associated with Trademark Productions or the data center provider initiates a “Denial of Service” or other forms of disabling attack against your Dedicated Server or major portions of our network, Trademark Productions, and their data center managing partner will undertake commercially reasonable efforts to stop the attack, but cannot guarantee a resolution time.
- Legal Actions – In the case that legal action is taken against a customer of Trademark Productions and Trademark Productions is required to act in accordance with the order, Trademark Productions and the data center provider shall not be responsible for any SLA damages.
- cPanel Issues – if you choose to run cPanel and Web Host Manager on your Dedicated Server, the default install will be configured for automatic updates of cPanel related software. On occasion, one of these automatic updates could adversely affect all or part of the cPanel related software on your server. Trademark Productions, through its data center, the managed provider will do whatever is necessary to fix any cPanel related problems, but cannot guarantee a resolution time.
Hosting Network SLA Remedy
In the event that Trademark Productions does not meet this SLA, Dedicated Hosting clients will become eligible to request compensation for downtime reported by service monitoring logs equal to the cost of hosting only. If Trademark Productions is directly responsible for causing the downtime, the customer will receive a credit for 2 times (200%) the actual amount of downtime.
All requests for compensation must be received within 5 business days of the incident in question. The amount of compensation may not exceed the customer’s monthly recurring charge. This SLA does not apply for any month that the customer has been in breach of Trademark Productions Terms of Service or if the account is in default of payment. Duplication of SLA compensation is not allowed. Only one SLA credit may be given per incident. For example: if a network outage SLA event and a phone SLA event happen simultaneously. SLA compensation will only be given for one of the events.
Trademark Productions, through its’ data center, managed provider utilizes some third-party services to provide responses to customers. If a third-party system’s failure prevents Trademark Productions from honoring the Response Time SLA requirements the SLA event will be ineligible for compensation.
Schedule F – TM “TMJumpStart” Busines Website Service Packages
Small business website design, marketing, and hosting packages, herein referred to as TMJumpStart, remain under the auspices of the full terms of service and include the following provisions:
- TM will provide a design based on the supplied creative reference images and graphics you at the start of the project.
- TM is being hired to create a design, then code and place in a theme within the template system of our base code that is WordPress. TM is responsible for the creation of one contact form and setting up an admin email message and automated response. TM is responsible for putting your website live on our server and ensuring an acceptable level of traffic accessibility. The client is responsible for populating their website with all content before, during and after the launch.
- TM is not responsible to maintain, update or back-up your website, plugin and files unless under contract for those services.
- TM retains the full license right, “full ownership” of the work product and will not release those rights until the work product is paid for in full.
- TM financing rate is 12% of the package total, less any deposit and calculated at the time of purchase and broken into 11 equal payments.
- If monthly maintenance package is selected TM will not refund, credit, or transfer monthly hours to another month and does not allow accumulation of hours for later use.
- Scheduled monthly payments will be made to the credit card on file on the calendar date of the contract agreement. If the credit card is declined we will retry the card in 24 hours, if declined again we will contact you and payment will need to be made with a new card within 24 hours. If not paid in 3 days TM reserves the right to suspend your services. You will be subject to and agree to a reinstatement fee of $295 for every instance of your website going down due to nonpayment.
- Client reserves the right to leave TM services after full payment is received and ownership is transferred. TM will provide you a copy of your website files including any databases in a ZIP format upon separation for a fee of $495. Delivery of your files will be via a secure online file transfer system.
- Client reserves the right to make payment early for full ownership of their website. TM is obligated to provide a payoff amount for the calendar date balance and any fees or finance charges.