This Service Agreement (“Agreement”) is entered into by and between BlackStorm Design & Marketing, LLC (“Agency”) and the undersigned client (“Client”) on the date of acceptance of this Agreement.
1. Reporting & Feedback: All reporting is made available to the Client 24/7. Each Website & SEO report is updated monthly. Each PPC report is updated weekly. Monthly scheduled meetings are available with the assigned Success Manager at the Agency. When more urgent matters exist, we have technical support
available.
2. Payments: The first payment is processed at the launch of the campaign and then automatically processed every month on the same day with credit/debit
card processing along with receipts to be emailed.
3. Currency: Except as otherwise provided in this agreement, all monetary amounts referred to in this agreement are in USD (U.S. Dollars).
4. Non-compete: Throughout this agreement, the Client shall not, in any manner, represent, provide services or engage in any aspects of the business that would be deemed similar to the business of the Agency without the written consent of the Agency. The Agency warrants and guarantees that throughout this agreement, completion, or termination of this agreement, the Client shall not directly or indirectly engage in any business that would be considered similar to the Agency, its subsidiaries, and any current or former clients and customers. Nor shall the Agency solicit any Client’s customer, officer, staff, or employee for the benefit of himself/herself or a third party that is or may be engaged in a similar business.
5. Governing Law and Venue: This Agreement will be governed by, construed under, and enforced in accordance with the laws of the State of Tennessee, without regard to its conflict of laws and rules, and the prevailing party will be entitled to reasonable attorneys’ fees and costs of suit, as well as all such fees associated with enforcing any judgment pursuant hereto. Any lawsuit or action brought by the parties hereto shall be filed and adjudicated in the state and federal courts in Knox County, Tennessee, which shall be the exclusive forum for any such dispute. Nothing herein shall prohibit a party from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage or to preserve the status quo.
6. Confidentiality: Confidential Information (the “Confidential Information”) refers to any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but not limited to, accounting records, business processes, and Client records and that is not generally known in the industry of the Client and where the release of that Confidential Information could reasonably be expected to cause harm to the Client. The Agency agrees that it will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the Agency has obtained, except as authorized by the Client or as required by law, in which case the Agency shall notify the Client upon such request to compel disclosure. The obligations of confidentiality will apply during the term of this agreement and will survive indefinitely, including the termination of this agreement.
7. Limitation of Liability: In no event shall the Agency, its shareholders, directors, officers, employees, affiliates, licensors, or suppliers be liable hereunder for any consequential, exemplary, special, indirect, incidental, or punitive damages or lost revenue, lost profits, or anticipated business (even if they have been advised of the possibility of such damages) arising from or relating to this agreement, the subject matter hereof, the sites or the services provided hereunder, including but not limited to damages arising from the information provided by, to or through an Agency, or any other damages, however, caused, under any theory of liability, including without limitation tort (including negligence), contract or otherwise. Without limiting the generality of the foregoing, the Agency does not warrant that the sites will operate error-free or without interruption. The aggregate liability of the Agency, its shareholders, directors, officers, employees, affiliates, licensors, and suppliers to the Agency for any damages arising from or relating to this agreement, the subject matter hereof, the sites or the services provided hereunder, however, caused, under any theory of liability, shall not exceed the greater of (i) the amount received by the Client directly from the Agency pursuant to this agreement during the calendar month during which such claim(s) accrued, or (ii) $100.00.
8. No Joint Venture: This Agreement creates no partnership, joint venture, association, franchise, contract of employment, or comparable relationship between the parties. Neither party shall have the authority to bind the other party for any purpose not expressly set forth herein.
9. Additional Representations, Warranties, and Covenants of Client: The Client further represents, warrants, and covenants to the Agency as follows:
9.1. The Client has and will have all licenses, certifications, and other governmental and non-governmental authorizations (collectively, the”Licenses”) required for the conduct of the Client’s business as a Client who offers services in contracting to consumers. All such licenses are and will remain valid and in good standing.
9.2. The Client has not been disciplined or threatened with discipline by any governmental authority or professional association for any violation or alleged violation of any law, regulation, rule, or ethical standard applicable to Client, any license held by Client or Client’s business, and no disciplinary proceeding involving Client is pending or threatened.
9.3. All information provided by the Client to the Agency relating to this agreement or the Client’s account is true, accurate, and complete in all respects.
10. Independent Contractor: The Client is hiring the Agency as an independent contractor. The following statements accurately reflect their relationship:
10.1. The Agency will use its own equipment, tools, and material to do the work.
10.2. The Client will not control how the job is performed on a day-to-day basis. Rather, the Agency is responsible for determining when, where, and how it will carry out the work.
10.3. The Client will not provide the Agency with any training.
10.4. The Client and the Agency do not have a partnership or employeremployee relationship.
10.5. The Agency cannot enter into contracts, make promises, or act on behalf of the Client. Likewise, the Client cannot enter into contracts, make promises, or act on behalf of the Agency.
10.6. Neither party is entitled to the employment benefits offered by the other party (e.g., group insurance, retirement benefits, retirement plans, vacation days).
10.7. Each party is responsible for its own taxes.
10.8. The Client will not withhold social security and Medicare taxes or make payments for disability insurance, unemployment insurance, or workers compensation for the Agency or any of the Agency’s employees or subcontractors.
11. Graphic Design Service Terms
11.1. Ownership & Licenses: The Client Owns All Work Products. As part of this job, the Designer is creating a “work product” for the Client. To avoid confusion, the work product is the finished product. The Designer hereby gives the Client this work product once the Client pays for it in full. This means the Designer is giving the Client all of its rights, titles, and interests in and to the work product (including intellectual property rights), and the Client will be the sole owner of it. The Client can use the work product however it wants, or it can decide not to use the work product at all. The Client, for example, can modify, destroy, or sell it as it sees fit.
11.2. Designer’s Use Of Work Product. Once the Designer gives the work product to the Client, the Designer does not have any rights to it, except the right to use it on display as part of the designer’s portfolio for other prospective clients.
11.3. Credit For The Work Product. The Client gives credit to the Designer each time it publishes the work product.
11.4. Designer’s Help Securing Ownership. At some point, the Client may need the Designer’s help to show that the Client owns the work product or to complete the transfer. The Designer agrees to engage in reasonable efforts to assist with establishing a Client’s ownership of Work Product.
11.5. Designer’s Intellectual Property That Is Not Work Product. During the course of this project, the Designer might use intellectual property that the Designer owns or has licensed from a third party, but that does not qualify as a “work product.” This is called “background I.P.” Possible examples of background I.P. are pre-existing code, type fonts, properly-licensed stock photos, and web application tools. The Designer is not giving the Client this background I.P. But, as part of the contract, the Designer is giving the Clienta right to use and license (with the right to sublicense) the background I.P. to develop, market, sell, and support the Client’s products and services. The Client may use this background I.P. worldwide and free charge, but it cannot transfer its rights to the background I.P. (except as allowed in Section 11.1 (Assignment)). The Client cannot sell or license the background I.P. separately from its products or services. The Designer cannot take back this grant, and this grant does not end when the contract is over.
11.6. Designer’s Right To Use Client I.P. The Designer may need to use the Client’s intellectual property to do its job. For example, if the Client is hiring the Designer to build a website, the Designer may have to use the Client’s logo. The Client agrees to let the Designer use the Client’s intellectual property and other intellectual property that the Client controls to the extent reasonably necessary to do the Designer’s job. Beyond that, the Client is not giving the Designer any intellectual property rights unless specifically stated otherwise in this contract.
12. Website Design Service Terms
12.1. Website Warranty. Performance. For a period of 12 days after the delivery of the website to the Client (the “Warranty Period”), the Developer warrants that the website will be free from programming errors and defects in workmanship and materials and will conform to the specifications of Exhibit A. If programming errors or other defects are discovered during the Warranty Period, the Developer shall promptly remedy those errors or defects at its own expense. The Developer is not obligated to remedy these errors or defects unless the Client notifies the Developer of the existence and nature of those errors or defects within 30 days after their discovery.
12.2. No Disablement. The Developer warrants that the website, when delivered or accessed by the Client, will be free from viruses, logic locks, and other disabling devices or codes and will contain no virus, Trojan horse, worm, drop-dead devices, trap doors, time bombs, or other software routines or other hardware components that could permit unauthorized access, disable, erase, or otherwise harm the website or any software, hardware, or data, cause the website or any software or hardware to perform functions other than those specified in this agreement, halt, disrupt,
or degrade the operation of the website or any software or hardware, or perform any other such actions.
12.3. Timing & Delays: The Developer shall inform the Client immediately of any anticipated delays in the delivery schedule and any remedial actions to ensure the website’s completion according to schedule. If a delivery date is missed, the Client may, in its sole discretion, declare that delay a material breach of the agreement under subsection 2(b)(ii) and pursue all of its legal and equitable remedies. The Client may not declare a breach, and the Developer cannot be held in breach of this section if the delay is caused by an action or failure of action of the Client. In that case, the Developer shall provide the Client with written notice of the delay and will not continue to work on the website until the reason for the delay has been resolved by the Client. The Client has provided written notice of the resolution to the Developer.
12.4. Intellectual property: No Intellectual Property Infringement by Developer. The Developer represents that the use and proposed use of the website by the Client or any third party does not and will not infringe, and the Developer has not received any notice, complaint, threat, or claim alleging infringement of any trademark, copyright, patent, trade secrets, industrial design, or other rights of any third party in the website, and the use of the website will not include any activity that may constitute “passing off.” To the extent the website infringes on the rights of any third party, the Developer shall obtain a license or consent from that third party permitting the use of the website.
12.5. No Intellectual Property Infringement by Client. The Client represents to the Developer that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to the Developer for inclusion in the website are owned by the Client, or that the Client has permission from the rightful Client to use each of these elements, and will indemnify the Developer and its subcontractors against any liability (including attorneys’ fees and court costs), any claim or suit, threatened or actual, arising from the use of such elements furnished by the Client.
12.6. Continuing Ownership of Existing Trademarks: The Developer recognizes the Client’s interest in all service marks, trademarks, and trade names used by the Client and agrees not to engage in any activities or commit any acts, directly or indirectly, that may contest, dispute, or otherwise impair the Client’s right, title, and interest therein, nor shall the Developer cause diminishment of value of those trademarks or trade names through any act or representation. The Developer may not apply for, acquire, or claim any interest in those service marks, trademarks, or trade names, or others that may be confusingly similar to any of them, through advertising or otherwise. Effective as of the termination of this agreement, the Developer will stop using all of the Client’s trademarks, marks, and trade names.
13. Website Hosting & Maintenance
13.1. Maintenance Requests: Procedure for Request. The Client shall submit all requests for maintenance (each, a “Client Maintenance Request”) to the Agency via email. An Client Maintenance Request shall:
13.1.1. Provide the Agency with clear and specific instructions;
13.1.2. Be reasonable in nature; and
13.1.3. Be within the scope of the Services.
13.2. All materials transferred to the Agency in connection with a Client Maintenance Request must be in an acceptable format, which shall be
limited to the following:
13.3. Review and Inspection: The Agency shall promptly notify the Client when the work required under a Client Maintenance Request is complete so that the Client can review that work to ensure its accuracy. The Client shall notify the Agency of any errors, omissions, and other issues via email or telephone as soon as following the practicable discovery. The Agency shall
use its best efforts to resolve any errors, omissions, and issues as quickly as possible.
13.4. Routine/Corrective Maintenance: All routine corrective maintenance must be scheduled between the hours of 4 pm to 4 am to minimize disruption of the website during peak times (the “Maintenance Time”). If any extra maintenance is required outside of the Maintenance Time, the Agency will obtain the Client’s prior consent and give the Client at least 2 hours advance notice.
13.5. Timing: The Agency shall make all updates to the website within the time that Client Maintenance Request is received. Any Client Maintenance Request submitted by the Client after 4 pm EST or on Saturday, Sunday, or federal holidays will be deemed received on the next business day. If the work to be performed under any Client Maintenance Request cannot be performed within the Maintenance Time, the Agency shall notify the Client immediately.
13.6. Website Problems; Security:
13.6.1. Minimize Disruption. The Agency shall use commercially reasonable efforts to minimize disruption of the website and to schedule Website maintenance in accordance with this agreement.
13.6.2. Problems. If there is a problem with the website, the Agency shall provide the following levels of support:
13.6.3. Urgent Problem. Suppose the website suffers from an urgent problem, including the website becoming unusable. In that case, the Agency understands that time is of the essence and will use its best efforts to correct the problem as soon as possible. The Agency shall continue to update the Client on the status of the problem until the problem is resolved. At this time, the Agency will immediately notify the Client that the problem has been corrected.
13.6.4. If the Agency becomes aware of an urgent problem before the Client, the Agency shall immediately notify the Client of that problem.
13.7. Non-urgent Problem. If the website suffers from a non-urgent problem, the Agency understands that time is of the essence and will use its best efforts to correct the problem as soon as possible. The Agency will continue to update the Client on the status of the problem until the problem is resolved. At that time, the Agency will promptly notify the Client during normal business hours that the problem has been corrected. If the Agency becomes aware of a non-urgent problem before the Client becomes aware of it, the Agency shall notify the Client during normal business hours of such problem.
13.8. Back-up. The Agency shall back up the website as set forth in this agreement.
13.9. Security. The Agency must take commercially reasonable steps to prevent unauthorized access to the website and any of the Client’s Confidential Information, including any data collected on the website.
13.10. Email Hosting: The Agency will not host or manage emails of any kind nor be responsible for email support, technical issues, or email liability. If the Client is desiring email hosting (using or not using the Client’s company’s domain), we will, however, assist in setting up the email hosting with a third-party Agency, “Google Workspace,” or a third-party I.T. service Agency would need to help manage the email support.
13.11. Security: The Agency will make reasonable attempts to secure all data on the Client Site. However, the Agency is not responsible for lack of care by the Client to secure its data (for example, sharing of Client’s username, password, or other account information, not logging out of Client’s Account, etc.) or for any breach of security on the site. For the avoidance of doubt, the Agency is responsible for any access to or use of the Agency’s Account or the Client Site by the Agency or any person or entity using the Agency’s username, password, or other account information provided by the Client to the Agency, whether or not such access or use has been authorized by or on behalf of the Agency, and whether or not such person or entity is an employee, the Agency or representative of the Agency. The Agency acknowledges and agrees that the Client has the right to deactivate, change, and delete the Agency’s username or password at the Client’s sole discretion
for any reason or no reason. The Agency will maintain appropriate physical, technical and organizational measures to protect each lead provided to the Client against accidental loss or unauthorized access, use, disclosure, alteration, or destruction.
14. Social Media Management Service Terms
14.1. The client agrees to permit the Agency to plan, create, and publish posts on all public accounts, including but not limited to all social platforms and local directories. The Client will not hold the Agency liable for any damage caused by publishing posts created by the Agency. In the event that a post has caused or is causing damage, then the Client can delete such post or notify the Agency to remove such post. The Client can remove any post that does not meet the standard of the Client, or the Client can request the Agency to remove such post.
14.2. The client agrees to provide the Agency with all necessary access to all accounts to manage them properly.
15. Reputation Management Service Terms
15.1. The Agency does not make any guarantee that the Client will not receive negative reviews, nor does the Agency guarantee that will be generated from the efforts of
reputation management. The Client relieves the Agency of any liability related to reviews that may affect the Client’s reputation.
16. Organic SEO & Local SEO
16.1. SEO Services will include (but are not limited to):
16.1.1. Researching keywords and phrases to select appropriate, relevant search terms (up to XX phrases).
16.1.2. Obtaining “backlinks” from other related websites and directories in order to generate link popularity and traffic (up to XX amount).
16.1.3. Editing and/or optimization of text for various Html tags, metadata, page titles, and page text as necessary (up to XX pages).
16.1.4. Analysis and recommendations on optimal website structure, navigation, code, etc., for best SEO purposes.
16.1.5. Recommend, as required, additional web pages or content for the purpose of “catching” keyword/phrase searches.
16.1.6. Create traffic and ranking reports for the CLient’s domain and any associated pages showing rankings in the major search engines.
16.2. For the purposes of receiving professional SEO services, the Client agrees to provide the following:
16.2.1. Administrative/backend access to the website for analysis of content and structure.
16.2.2. Permission to make changes for optimization and to communicate directly with any third parties, e.g., your web designer, if necessary.
16.2.3. Unlimited access to existing website traffic statistics for analysis and tracking purposes.
16.2.4. Authorization to use client pictures, logos, trademarks, website images, pamphlets, content, etc., for any use as deemed necessary by the Agency for search engine optimization purposes.
16.3. If the Client’s site is lacking in textual content, the Client will provide additional text content in electronic format for the purpose of creating additional or richer web pages. The Agency can create site content at an additional cost to the Client. If the Client is interested in purchasing content from The Agency, please contact The Agency for a cost estimate.
16.4. The Client must acknowledge the following with respect to SEO services:
16.4.1. All fees are non-refundable.
16.4.2. All fees, services, documents, recommendations, and reports are confidential.
16.4.3. The Agency has no control over the policies of search engines regarding the type of sites and/or content they accept now or in the future. The Client’s Website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory.
16.4.4. Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, The Agency does not guarantee #1 positions or consistent top 10 positions for any particular keyword, phrase, or search term. However, if The Agency fails to increase traffic to the site by X% after four weeks of services, The Agency will continue SEO services at no added cost to the Client until such a percentage is met.
16.4.5. Google has been known to hinder the rankings of new websites (or pages) until they have proven their viability to exist for more than “x” amount of time. This is referred to as the “Google Sandbox.” The Agency assumes no liability for ranking/traffic/indexing issues related to Google Sandbox penalties.
16.4.6. Occasionally, search engines will drop listings for no apparent or predictable reason. Often, the listing will reappear without any additional SEO. Should a listing be dropped during the SEO campaign and not reappear within 30 days of campaign completion, The Agency will reoptimize the website/page based on the current policies of the search engine in question.
16.4.7. Some search directories offer expedited listing services for a fee. If the Client wishes to engage in said expedited listing services (e.g., paid directories), the Client is responsible for all paid-for inclusion or expedited service fees. The Agency can offer a list of expedited listing services upon request.
16.4.8. Linking to “bad neighborhoods” or getting links from “link farms” can seriously damage all SEO efforts. The Agency does not assume liability for the Client’s choice to link to or obtain a link from any particular website without prior consultation.
17. Analytics
17.1. The Agency will set up all necessary analytics & data tools to collect data for the Client’s website. This does not affect lead generation or marketing.
18. Local Service Ads by Google
18.1. If the Agency is hired for Google ads management then the Agency will assist in the process of getting the Client to apply for Google Local Service Ads. Still, the Agency does not guarantee that the Client will get approved by Google for their local service ads. If approved, then the Agency will assist in monitoring the ads, but the Agency will not be liable for any charges from Google. Any disputes will be between Google and the Client.
19. Display/Banner Ads & Search Ads by Google or Other Search Engines
19.1. Client acknowledges the following with respect to services: The Agency accepts no responsibility for policies of PPC Advertising Networks, third-party search engines, directories, or other websites (“Third-Party Resources”) that the Agency may submit to with respect to the classification or type of content it accepts, whether now or in the future. The Client’s website or content may be excluded or banned from any Third-Party Resource anytime. The Client agrees not to hold the Agency responsible for any liability or actions taken by Third-Party Resources under this agreement.
19.2. The Client acknowledges that the nature of many of the resources the Agency may employ under this Agreement are competitive. The Agency does not guarantee #1 position, consistent positioning, “top 10 positions”, or specific placement for any particular PPC keyword, phrase, or search term. The Client acknowledges that the Agency’s past performance is not indicative of any future results the Client may experience. The Client acknowledges that SEO and submissions to search engines and directories can take an indefinite amount of time for acceptance or inclusion.
19.3. PPC Advertising may be subject to the individual advertising network’s policies and procedures. Each edit or change made to any resources employed by the Agency may repeat these inclusion times. The Client acknowledges that any of the PPC advertising networks, search engines, directories, or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time. The Client acknowledges that PPC advertising networks or search engines may drop listings from its database for no apparent or predictable reason.
19.4. The Agency shall re-submit resources to the search engine based on the current policies of the search engine in question and whether pay inclusion programs are being used. The Agency will endeavor to make every effort to keep the Client informed of any changes that the Agency is made aware of that impact any of the PPC Campaign and Strategy and the execution thereof under this agreement. The Client acknowledges that the Agency may not become aware of changes to third-party resources, industry changes, or any other changes that may or may not affect PPC campaigns or other SEO services.
19.5. The Client acknowledges that the Agency cannot guarantee the exact placement of the Client’s advertising; its availability or availability related to the funds in the Client’s account. The Client is solely responsible for all advertising network fees and paid inclusion fees and must maintain adequate funds in any third-party accounts in order to maintain inclusion in these resources. Consult Exhibit B for a complete list of advertising networks and Third-Party Resources employed under this agreement and an estimate of fees for specific keywords and other listings.
19.6. The Agency reserves the exclusive right, for the duration of this agreement, to approve or disapprove any design strategies, existing code, or other techniques, whether requested by Client or presently employed by Client, the Agency considers that to be detrimental to the PPC campaign or other SEO strategies and the execution of the Agency’s services under this agreement.
20. Pay Per Lead & Website Renting
20.1. The Agency owns and operates all websites and landing pages used in the lead generation services provided to the Client. The Client acknowledges that they have no ownership or control over these websites and landing pages and are simply renting or paying for leads generated through them.
20.2. The Agency reserves the right to terminate the Client’s use to these websites and landing pages at any time, for any reason, without liability to the Client. In the event of such termination, the Client will not be entitled to any refunds or compensation for any fees paid to the Agency.
20.3. The Client acknowledges that they will not modify, copy, reproduce, distribute, display, or create derivative works of the websites or landing pages owned by the Agency. Any attempt to do so will result in immediate termination of the Client’s access to the websites and landing pages and may result in legal action taken by the Agency.
20.4. The Client also acknowledges that the lead generation services provided by the Agency are based on their expertise and experience in marketing and advertising and that the Agency retains full control over the methods and techniques used to generate leads.
21. Social Media Advertising
21.1. The Client agrees to grant all necessary access to manage the social platform’s ad accounts to create, manage, and optimize social ad campaigns. The Client agrees to relieve the Agency from any liability caused by the social media ad campaigns.
21.2. The social platform and the Client will handle any charges or disputes.
22. Email Marketing
22.1. Email Marketing services enable corporate websites, small business websites, community sites, and individual sites to sign up website visitors, collect and store visitor subscription information, and build and conduct email communications with their contacts.
22.2. The number of contacts in your account is metered by the Agency.
22.3. All subscription plan prices are subject to change at any time.
22.4. Monthly fees will be charged even if your account was not used to send emails.
22.5. It is understood that the Agency makes no guarantee that HTML messages will be rendered properly on all recipients’ email programs due to the wide variety of HTML generation tools available. Agency makes every attempt to make sure that all email messages sent through our servers follow email standards, but we cannot guarantee that messages will look consistent across all email platforms. For example, if you use Microsoft Word to generate HTML email messages, it is expected that recipients of your message using a non-Microsoft email application may have difficulty reading your message. For best results Agency recommends, but does not guarantee, the use of HTML editors that generate HTML that adheres to W3C standards.
22.6. ANTI-SPAM POLICY: You may not at any time utilize the Services for the sending of unsolicited email messages (sometimes called and hereinafter referred to as “spam”). All messages sent by means of your use of our Services shall be in compliance with the terms of this agreement and shall only be used for lawful purposes in compliance with all other applicable U.S., state, local and international laws governing your business, operations, and activities, which may include (1) the U.S.’ CAN-SPAM Act of 2003 (“CANSPAM”), (2) Canada’s Anti-Spam Legislation (“CASL”), or (3) any other jurisdictions policies and laws related to unsolicited emails, spamming, privacy, obscenity, or defamation, copyright and trademark infringement, child protective email address registry laws, laws relating to advertising, sales or promotional efforts or practices, redemption, refunds and provision of your products or services and laws that govern false, unfair and deceptive
practices, etc. Click the links provided for more information on compliance with CAN-SPAM or CASL.
22.7. We have a zero-tolerance spam policy. Notwithstanding anything to the contrary in terms of Service Agreement, you acknowledge and agree that we may immediately terminate or cancel any account, product, or service, including your use of the Services, that we believe, in our sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email activity. We reserve the right without notice to take all measures of any nature (whether legal, technical, or otherwise) toprevent unsolicited bulk email and/or other unauthorized email, messages, or campaigns from entering, utilizing or remaining within our network. Accounts, products, or services terminated or canceled in connection to spam or other unsolicited bulk email activity are ineligible for any refund.
22.8. The content you include in any email must be accurate, and you may only use the Services to send emails to Clients and contacts who have expressly opted in or otherwise given you lawful permission to send emails to them. If you do not have written proof that each recipient on your contact list has expressly opted in or given you permission to send emails to them, they should not be included in any email marketing campaign. You must be able to provide opt-in verification for each contact for each email marketing campaign.
22.9. We prohibit the use of third-party, purchased, rented, or harvested mailing lists. You shall not send emails (i) to newsgroups, message boards, distribution lists, or unsolicited email addresses, or (ii) to any recipient who has opted out, unsubscribed, or otherwise objected to receiving such emails from you or another party on whose behalf you may be commissioned. To the extent the Services include features that allow you to request a recipient to confirm that you have the recipient’s permission to send messages to such recipient (assuming such use is permitted by laws applicable to you), and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send messages to that recipient.
22.10. You acknowledge and agree that we have the right but not the obligation to copy and/or store your contact lists, Client and contact information, and other information as needed. We shall not use this information in any way that violates our Privacy Policy.
22.11. USE OF PROPER MESSAGING CONTENT: You represent and warrant that the information you use in any email marketing campaign, including the header, subject line, and content, is not false, deceptive, or misleading. More specifically, you agree (1) to include a valid and correct physical address and other contact information required by applicable law (e.g., secondary contact, such as a phone number, as required under CASL), (2) to ensure to provide a valid, accurate and non-deceptive identification of your organization in the “from” and “reply to” address in every email as the sole person sending or causing to be sent the email using our Services and (3) to ensure the “subject” line of any message sent is not deceptive or misleading with respect to the subject matter of the email message itself.
22.12. Every commercial email message sent utilizing our Services should include an “unsubscribe” link that allows subscribers to remove themselves from your mailing list. You agree not to remove or disable this link in your use of our Services. You must comply and are responsible for honoring all opt-out requests within ten (10) business days of receipt, and the opt-out method used must be able to process opt-out requests for a minimum of sixty (60) days after the email is sent. Generally speaking, you cannot charge a fee, require the recipient to give you any personally identifying information beyond an email address or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an unsubscribe request.
22.13. PROHIBITED USE: You acknowledge and agree that you shall not use the Services to request, collect or send any non-public or personally identifiable information about another user or any other person without their express prior written consent (or the parent’s consent in the case of a minor), illegal information, or any other information you do not have the right to request, collect or distribute.
22.14. You may not use Agency to send email campaigns that link to or display pornography, other sexually explicit content, illegal goods or services, pyramid schemes, chain letters, multi-level marketing campaigns, affiliate, and network marketing materials, or any other content we deem inappropriate. You may not exploit this service agreement by systematically uploading, sending, deleting, then replacing contacts in order to send to more unique email addresses than you’re permitted for your service level.
22.15. Unfortunately, some industries yield higher-than-normal abuse rates, which can negatively affect the deliverability for other Agency users. In order to maintain the highest possible delivery rates for all our users, the Agency is unable to send on behalf of certain industries and senders. This includes, but is not limited to, the following:
22.15.1. Pharmaceutical products
22.15.2. Work from home, make money online and lead generation opportunities.
22.15.3. Online trading, day trading tips, or stock market-related content
22.15.4. Gambling services, products, or tips
22.15.5. Multi-level marketing (MLM)
22.15.6. Affiliate marketing
22.15.7. Credit repair and get out of debt opportunities.
22.15.8. Mortgage and loan content
22.15.9. Nutritional, herbal, and vitamin supplements
22.15.10. List brokers or list rental services
22.15.11. Counterfeit or “knock off” products appearing to be another brand.
22.16. It is the responsibility of the sender to ensure that their content falls within these guidelines. The Agency may monitor your account to ensure compliance with these terms and operations within the acceptable standards of the industry and of the email providers you are sending to.
23. Service Package Agreement & Cancelation Policy: It is our goal to provide satisfactory services month after month to eliminate this outcome, but if, for whatever reason, the decision is to cancel this Service Agreement, we must receive a written notice of cancelation 30 days in advance. If canceled, we will no longer provide our premium access to tools, software, and authorization keys, including but not limited to CDN, Theme, Plugins, website hosting, legal pages, call tracking, Project Check.in System, Submit Local Review, etc.
23.1. Exclusivity: Exclusivity with BlackStorm Design & Marketing means that we will only work with the Client in a given city and niche e.g. Plumbing in New York City, NY. BlackStorm Design & Marketing will not work with another competitor located in that city serving in the same niche.
23.1.1. Agency may create websites, landing pages, or other marketing initiatives for the purpose of their lead generation service or pay per lead program without any restriction due to exclusivity. The exclusivity clause in this Agreement will not prohibit or limit Agency from providing pay per lead services to other clients. In the event that the Client wishes to receive pay per lead services, they must enter into a separate agreement with Agency and pay the applicable fees for those services, contingent on being qualified and accepted by Agency.
23.2. If the Client has chosen the Exclusivity option with the Agency then the Client is agreeing to hire Agency for a minimum of 12 months. The Client may make changes to the package that was initially chosen with Agency as long as the investment to Agency does not fall below $1,490.00 per month. If the Client does cancel services with Agency before the 12-month period, then the Client will owe Agency $17,880 minus the total investment made by the Client to Agency.
23.3. Upon cancelation of services with the Agency, the Client gives Agency full legal rights to process payment(s) to collect necessary funds. If the Client cancels services and does not provide payment to Agency for the owed cancelation balance, then the Client will become liable for all legal and collection fees accrued by Agency.
23.4. By utilizing the services provided by the Agency, the Client hereby acknowledges and agrees that they shall not request a refund, commence legal proceedings seeking a refund, or file a dispute with their financial institution in order to obtain a refund. The Agency does not provide refunds under any circumstances, as the value offered by the Agency’s services is immeasurable.
23.5. All pricing agreed in this agreement will be locked in for 12 months. After 12 months, a new service agreement will need to be signed with all updated pricing.