a. Projects. Hone, Inc. provides to Client the services (the “Services”) set forth in the attached Statement of Work (“SOW”) and any future Services to be provided by Hone, Inc. shall incorporate and be subject to these Terms. Each SOW shall state the deliverables (the “Deliverables”) to be developed and delivered by Hone,Inc., the applicable payment terms, any additional terms and conditions, and all other relevant information for the project. In the event of a conflict between the provisions of these Terms and the provisions in the SOW, the provisions of the SOW shall prevail, but only with respect to that specific SOW.
b. Change Orders. Any changes made to the Services after execution of these Terms or the applicable SOW must be made in a “Change Order,” which will be effective upon execution by both parties and will be incorporated into these Terms.
2. Payment Terms.
a. Fees. All fees (“Fees”) shall be set forth in the attached or applicable SOW. Most Services require a non-refundable down payment by Client, which must be paid upon execution of these Terms or the applicable SOW.
b. Delinquent Payments. Client shall be responsible for all costs relating to or arising from the collection of any delinquent payments, including but not limited to, any and all collection fees, collection agency fees, attorneys’ fees, court costs and expenses.
c. Expenses. Client is responsible for reimbursing Hone, Inc. for all project-related expenses, including, but not limited to, parking, cab fare, airfare, hotel, etc.
d. Taxes. Client shall pay all sales and other taxes, however designated or levied, based on the Fees.
Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, ideas, know-how, plans, employees, and other information held in confidence by the other party (“Confidential Information”). Confidential Information includes all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as necessary to meet its obligations with respect to the Services, nor disclose to any third party any of the other party’s Confidential Information. Each party will take reasonable precautions to protect the confidentiality of such information, at least as stringently as it takes to protect its own Confidential Information. Information will not be deemed Confidential Information hereunder if such information: (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of these Terms by the receiving party; or (d) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirement of a governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
a. Deliverables. Except as otherwise set forth in the SOW, Client is granted a limited, non-exclusive license to utilize the Services and Deliverables during the term in the applicable SOW. For Deliverables identified in the SOW as acquired by customer, Hone, Inc. hereby assigns all copyrights in the Deliverables (excluding all Hone, Inc. Property as defined below) to Client.
b. Hone, Inc. Property. Notwithstanding subsection (a) above, Hone, Inc. shall, however, retain sole and exclusive ownership of and all right, title and interest in to its own intellectual property, including but not limited to its underlying know-how, concepts, techniques, technology, software, preliminary designs, proposals, ideas, processes, models, templates, and tools (collectively, “Hone, Inc. Property”) used to provide the Services or to create the Deliverables or any other intellectual property or proprietary rights developed by Hone, Inc. or any other third party either independent of the SOW or which is applicable to Hone, Inc.’s Services generally and not client-specific. Client shall acquire no right or interest in the Hone, Inc. Property, except for a non-exclusive, non-transferable, royalty-free right to use the Hone, Inc. Property solely in connection with the Services and Deliverables provided hereunder.
c. Client Property. Client shall retain sole and exclusive ownership of and all right, title and interest in any content provided by Client to Hone, Inc. and used to provide Services or to create the Deliverables set forth in the SOW, including any URLs identified for use in their websites, trademarks, copyrights, patents or other trade secrets (“Client Property”). Client grants to Hone, Inc. a limited license to the Client Property solely for the purposes of providing Services or the creation of Deliverables as specified in the SOW. Client warrants that Client has the authority to grant such licenses.
5. Service Specific Terms.
The following terms will apply if Client requests any of the described Services from Hone, Inc..
a. Search Engine Optimization.
i. Billing and Service Terms. The Services begin on the day of full payment for the month of service, The Service auto-renew as defined in the SOW, which is typically on the day of the month which first month payment is made. Hone, Inc. designates this as the start date for Client’s SEO campaign. If Client’s designated start date is on the 1st of the month, Hone, Inc. requires full payment of Client’s first month’s service fees before any work can begin. The first month’s service charge occurs immediately following the receipt of the signed SOW. All payments are required to be made using a credit card or ACH and are non-refundable. The credit card charge is processed on the designated campaign start date of each month for service to be delivered within that month. If the credit card charge or ACH is declined for any reason, the Services will be suspended on the first day of the month until payment is received.
ii. Website Changes. Client agrees to provide a working content management system (“CMS”) admin login to Hone, Inc.. Changes that require a web developer are defined as any change that requires creating or modifying any code other than HTML. If the SOW states that Hone, Inc. can assist with website changes, Hone, Inc. can only assist with changes that require a web developer if: (a) Client website is hosted on a cloud-based CMS or Linux web server running an open source CMS; (b) Client website does not contain ASP, JSP, Ruby, Perl, Python, ColdFusion or any other server-side scripting language other than PHP; (c) Client website does not accept payments online or contain any e-commerce functionality; (d) Client provides Hone, Inc. with a working hosting control panel admin login. By providing a login to Hone, Inc., Client authorizes Hone, Inc. to make changes to the website. If Client does not provide a login or if Hone, Inc. cannot assist Client with changes for any reason, Client is responsible for completing website changes at its expense. All client-requested website changes are not included in the scope of this agreement.
iii. Service Termination. Cancellation requests must be provided in writing via email. A request to cancel services must be received no less than 30 days prior to the start of the next campaign start date. No fees will be credited or refunded.
b. Pay-Per-Click (PPC) Marketing.
i. Third-Party Billing and Service Terms. For Google Ads, Bing Ads, Facebook Ads, Twitter Ads and LinkedIn Ads (“Ad Platform(s)”): (a) new campaigns are established in new accounts on Client’s behalf; (b) credit card is used for the initiation and ongoing billing; (c) monthly media spend is charged directly to the Client credit card; (d) Client agrees to Ad Platform billing and service terms; (e) Client acknowledges that Client has entered into legally binding agreements with Ad Platforms; (f) Client voluntarily releases Hone, Inc. from any legal liability between Client and Ad Platforms. Ad Platform billing information: Google (https://support.google.com/google-ads/answer/6311), Microsoft (http://help.bingads.microsoft.com/apex/index/3/en-us/52026), Facebook (https://www.facebook.com/business/help/364871547019868), Twitter (https://business.twitter.com/en/help/account-setup/billing-basics.html) and LinkedIn (https://www.linkedin.com/help/linkedin/answer/12411/billing-frequency-for-self-service-advertising?lang=en). Ad Platform service terms: Google LLC Advertising Program Terms (https://billing.google.com/payments/termsandconditionsfinder), Microsoft Bing Ads Agreement (https://advertise.bingads.microsoft.com/en-us/resources/policies/microsoft-bing-ads-agreement), Facebook (https://www.facebook.com/policies/ads/), Twitter (https://legal.twitter.com/ads-terms/us.html) and LinkedIn (https://www.linkedin.com/legal/pop/pop-sas-terms).
ii. Billing and Service Terms. To begin work on new campaigns, Hone, Inc. requires the monthly retainer price to be paid prior to the launch of the campaign. All one-time setup payments are non-refundable. The Services have a minimum commitment period as defined in the SOW, which begins on the 1st day of the first full month payment. After the minimum commitment period ends, the Services auto-renew as defined in the SOW. The monthly media budget documented in the applicable SOW is set as Client’s monthly media budget. The monthly management fee is $300 or 15% of the monthly media budget, whichever is greater, and cannot be reduced during the minimum commitment period. Hone, Inc. designates a start date for the launch of Client’s new campaign or the takeover of management of Client’s existing campaign. If Client’s designated start date is on the 1st of the month, Hone, Inc. requires full payment of Client’s first month’s service fees before launching Client’s new campaign or the takeover of management of Client’s existing campaign. For designated start dates after the 1st day of a month: (a) Hone, Inc. requires a prorated payment of Client’s partial month’s service fees before launching Client’s new campaign or taking over management of Client’s existing campaign; (b) Hone, Inc. prorates Client’s monthly media budget for the initial partial month; (c) the monthly management fee for the partial month does not count towards the fulfillment of the minimum commitment period. All payments are required to be made using a credit card or ACH and are non-refundable. The credit card charge is processed on the first day of each month for service to be delivered within that month. If the credit card charge is declined for any reason, the Services will be suspended on the first day of the month until payment is received.
iii. Monthly Media Budget Modifications. Monthly media budget modification requests must be provided to Hone, Inc. in writing via email. For requests to increase the monthly media budget, on the next business day following the receipt of the request: (a) the new monthly media budget is set; (b) the prorated media budget is applied to the current month; (c) the new management fee is calculated; (d) the prorated management fee for the current month is processed; (e) the monthly management fee is updated to the new amount for processing starting on the 1st day of the next month. Requests for a decrease in media budget are processed on the last day of the month following the receipt of the request. The new monthly media budget is set on the first day of the following month. If the request to decrease the media budget is received within the minimum commitment period, the monthly management fee remains unchanged until the minimum commitment period has ended. The new monthly management fee is calculated on the last day of the last month of the minimum commitment period and is processed on the first day of the following month. If the request to decrease the media budget is received after the minimum commitment period has ended, the new monthly management fee is calculated on the last day of the month following the receipt of the request. The new management fee is processed on the first day of the following month.
iv. Campaign Pause Requests. Any Client requests to pause an Ad Platform campaign must be provided to Hone, Inc. in writing via email. These requests are processed on the next business day following the receipt of the written pause campaign request. Hone, Inc. pauses only Client’s actual media spend with Ad Platforms. Client’s monthly management fee paid to Hone, Inc. is not paused and continues to be billed as set forth in the applicable SOW. Hone, Inc. does not honor Client requests to pause monthly billing of the monthly management fee.
v. Account Access. Full access to Ad Platform accounts established pursuant to these Terms is restricted solely to Hone, Inc.. If Client requests access to the account(s), read-only access may be provided if available from Ad Platform(s).
vi. Landing Pages. Hone, Inc. may choose to provide landing pages for Client campaign(s). Hone, Inc. retains ownership rights to all landing pages it creates on behalf of Client. Due to the complex nature of campaign and tracking integration, all landing pages are stored on a specialized hosting platform. No access to this hosting platform is provided to Client and these landing pages cannot be transferred off the servers.
vii. Service Termination. Cancellation requests must be provided in writing via email. During the minimum commitment period there are no cancellations. A request to cancel services at the end of the minimum commitment period must be received no less than 30 days prior to the end of the minimum commitment period. For requests received after the minimum commitment period, or during the last month of the minimum commitment period, service delivery will be terminated 30 days after receipt of the written notice and a prorated fee will be charged immediately. Hone, Inc. honors Client’s request to immediately pause the Ad Platform accounts and the associated monthly media spend. No fees will be credited or refunded. Once Client is current with all Hone, Inc. billing, Hone, Inc. transfers account ownership of Ad Platform account to Client.
c. Email Marketing.
i. Billing and Service Terms. To begin work, Hone, Inc. requires one-hundred percent (100%) of the one-time setup payment. All one-time setup payments are non-refundable. The Services have a full six (6) month minimum commitment period, which begins on the first day of the first full month of service. After the minimum commitment period ends, the Services are month-to-month with a recurring one (1) month auto-renew occurring on the first day of each month. All payments are required to be made using a credit card or ACH and are non-refundable. After the first month of service, all monthly service credit card charges are processed on the first day of each calendar month for service to be delivered within that same month. If the credit card charge is declined for any reason, the Services may be suspended on the first day of the month until the full payment is received. Hone, Inc. does not honor Client requests to pause monthly billing or service.
ii. Service Termination. Cancellation requests must be provided in writing via email. During the minimum commitment period there are no cancellations. A request to cancel services at the end of the minimum commitment period must be received no less than 30 days prior to the end of the minimum commitment period. For requests received after the minimum commitment period, or during the last month of the minimum commitment period, service delivery will be terminated 30 days after receipt of the written notice and a prorated fee will be charged immediately. No fees will be credited or refunded.
d.WordPress Responsive Website Projects.
i. Billing Terms. A down payment of one-fourth (1/4) of the project investment is required upon execution of these Terms or the applicable SOW relating to web design and development. Three (3) additional payments of one-fourth (1/4) of the project fee will be invoiced monthly beginning one (1) month following the execution of these Terms or the applicable SOW relating to web design and development. All payments are required to be made using a credit card or ACH and are non-refundable.
ii. Changes/Revisions. A round of changes/revisions is considered a complete list of numbered changes provided by Client. Once Hone, Inc. receives a round of changes, Hone, Inc. confirms that this list is complete and approved as a single round. Any changes after the provided round of changes has been executed are quoted as a Change Order to this project. In Client’s review process, Client is required to consolidate all of its changes into a single round per phase to avoid additional project costs. Hone, Inc. provides a single round of changes on the following phases of the project: Site Map and Full Site Development. Hone, Inc. provides content for the project as is. Client is responsible to edit and submit final approved content.
iii. Development Hosting Environment. Client agrees to open a hosting account through SiteGrounds (http://bit.ly/2HOr3rX) Hone,Inc.’s recommended hosting partner at the time of execution of these Terms or the applicable SOW. Client provides Hone, Inc. with all necessary login information. Hone, Inc. uses this environment for all development work.
iv. Production Hosting Environment. Prior to launch, Hone, Inc. will host the site on an example development subdomain environment on the honedigitalmarketing.com domain. Client is required to cover all necessary expenses involved with hosting a website through the platform of their choice which will best accommodate the production website’s unique monthly visitor total. SiteGrounds requires the use of a credit card for monthly billing. Hone, Inc. is not responsible for any aspect of Client’s relationship with SiteGrounds or any other hosting provider. Client may be required to upgrade the SiteGround account if the production website requires additional server resources and/or the domain receives a large amount of pageviews. If Client chooses to use a different hosting provider other than SiteGround, Client must notify Hone, Inc. within thirty (30) days of the signed SOW date. The non-Siteground, Client-selected hosting provider must meet the hosting specifications provided by Hone, Inc..
v. Warranty. Hone, Inc. provides a 30-day warranty on all web development work completed. The warranty covers bug fixes from the date of launch through a 30-day period. Bug fixes within the warranty timeframe are completed at no cost. If Client decides to host its website with a third party other than SiteGround: (a) Hone, Inc. does not provide any warranty for bug fixes that are related to the hosting environment; (b) Client pays Hone, Inc.’s standard hourly rate for the investigation of issues and bug fixes related to the hosting environment; (c) if Hone, Inc. does not deploy the website on the non-SiteGround, Client-selected hosting provider, no warranty is provided. After the warranty period is completed, all work is considered new work and is charged at Hone, Inc.’s standard hourly rate.
vi. Search Engine Optimization Disclaimer. Client agrees that nothing in these Terms shall be construed to imply that Hone, Inc. is providing search engine optimization services unless expressly agreed to in a separate SOW.
6. Phone Call and Form Submission Tracking.
Hone, Inc. may choose to provide phone call and form submission tracking technologies that integrate into Client website(s) and/or landing page(s). These technologies may capture, track, record and store online form submission data and phone calls generated from Client website visitors. Client acknowledges and allows Hone, Inc. to listen to each phone call recording and read the text of each form submission to identify sales leads to be displayed in Hone, Inc.’s reporting.
7. Warranties; Disclaimer.
a. Client’s Warranties. Client warrants that: (i) it has full power and authority to enter into these Terms; (ii) these Terms have been duly authorized, executed, and delivered by it and constitute a valid binding contract; (iii) it will comply with all third-party license terms; and (iv) any content (textual and non-textual) provided by Client to Hone, Inc. is actually owned by Client or Client has permission to use such content from the rightful owner, and such content including any trademarks, copyrights, or other intellectual property does not violate any third party’s rights. Client is solely responsible for legal clearance relating to any marketing practice or content displayed, developed or executed on behalf of Client by Hone, Inc., and obtaining all rights to all content unless such content is developed entirely by Hone, Inc.. Client is solely responsible for reviewing and approving all content that will appear on Client’s website, brochures or any other materials and is solely responsible for the accuracy of such content.
b. Hone, Inc. Warranties. Hone, Inc. warrants that: (i) it has full power and authority to enter into these Terms; and (ii) these Terms have been duly authorized, executed, and delivered by it and constitute a valid binding contract. THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS.” EXCEPT AS SET FORTH IN THIS SECTION, Hone, Inc. DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE AND NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. Hone, Inc. DOES NOT WARRANT THAT THE DELIVERABLES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
c. Links to Other Websites. Client’s website(s), landing page(s) or email marketing template(s) may contain links to, or may be accessible from, links within related or unrelated websites and resources. Hone, Inc. shall not be liable for any loss, injury, claim, liability or damages of any kind arising out of or in connection with such links.
8. Limitation of Liability.
In no event shall Hone, Inc. be liable to Client for any special, consequential, incidental, punitive or indirect damages of any kind whatsoever, including without limitation, lost profits or lost savings, even if Hone, Inc. has been advised of the possibility of such damages. In no event shall Hone, Inc.’s liability to Client exceed the amounts paid by Client to Hone, Inc. under the applicable SOW in the twelve (12) month period immediately preceding the occurrence of the claim.
Client hereby agrees to indemnify, defend and hold Hone, Inc., and its officers, directors, agents, vendors, licensors and subcontractors (collectively, the “Indemnified Parties”) harmless from and against any and all third-party claims, liability and costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any claim arising out of: (a) any breach by Client of these Terms; (b) inaccurate, incomplete or improper assertions with respect to Client products and services or the products and services of Client’s competitors which may be contained in any marketing communication or appear on Client’s website, and was approved by Client; (c) any advertising element furnished by Client that allegedly violates a personal or property right of anyone, including but not limited to claims for libel, slander, defamation, copyright or trademark infringement, invasion of privacy, misappropriation of ideas, piracy and plagiarism; (d) representations made by Client; (e) any agreement between Client and a third party, including but not limited to Google, Inc. and Microsoft Online, Inc. or any other third party’s license terms, including the use of any material in violation of such terms; (f) any use of Client’s website or services; (g) Client Property, content, information and services provided by Client; and (h) any and all actions, conduct or acts of omission by Client. Client shall cooperate as fully and as reasonably required in the defense of any claim. Hone, Inc. reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Client.
10. Term, Termination.
a. Term. These Terms shall commence upon the Effective Date and continue until terminated in accordance with this Section. Upon completion of all outstanding Services, either party may terminate these Terms upon ten (10) days prior written notice to the other party, unless the applicable SOW provides for automatic renewal.
b. Termination for Breach. Either party may terminate these Terms upon written notice if the other party materially breaches these Terms and fails to cure the breach within thirty (30) days of receipt of notice of the breach. Additionally, Hone, Inc. may terminate these Terms immediately if Client: (i) fails to pay Fees due; or (ii) fails to cooperate with Hone, Inc. or hinders Hone, Inc.’s ability to perform the Services hereunder.
c. Effects of Termination. All Fees owed by Client to Hone, Inc. shall be automatically due and payable upon termination or completion of these Terms.
d. Survival. Sections 3, 4, 7-9, 10 (d), 11 and 12 shall survive termination or expiration of these Terms.
Hone, Inc. employees may be at Client’s site or otherwise in contact with Client for the purpose of providing Services. During the period beginning with the Effective Date and ending two (2) years after the completion of the Services provided by a Hone, Inc. employee, neither Client nor any affiliate of Client shall offer employment to any employee of Hone, Inc. who has provided Services to Client. Client acknowledges and agrees that the breach of this Section by Client would cause Hone, Inc. irreparable injury. In the event of the breach or threatened breach of this section by Client, Hone, Inc. shall have the right to seek specific performance, an injunction or other equitable relief to prevent the unauthorized offer of employment or employment of a Hone, Inc. employee in violation of this Section.
These Terms set forth the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersede all prior oral and written agreements and understandings. These Terms may not be amended except by an instrument in writing signed on behalf of each of the parties. No waiver of any of the provisions of these Terms will be deemed or will constitute a waiver of any other provision hereof (whether or not similar), nor will such waiver constitute a continuing waiver unless otherwise expressly provided. In the event that any one or more of the provisions contained in these Terms or in any other instrument referred to in these Terms are, for any reason, held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability will not affect any other provision of these Terms or any other such instrument. These Terms shall be governed in accordance with the laws of the State of Texas, excluding all conflicts of laws principles. The parties hereby submit to the exclusive jurisdiction of the federal and state courts in or near Dallas,Texas. Nothing herein shall be construed to create a partnership or joint venture by or between Client and Hone, Inc.. Nothing herein will be construed to place the parties in a relationship of partners, joint venturers or agents, and neither party will have the power to obligate or bind the other in any manner whatsoever without the other party’s prior written approval. Client may not assign any rights, obligations or duties, in whole or in part, and/or any other interest hereunder, without the prior written consent of Hone, Inc., which consent can be withheld in Hone, Inc.’s discretion. Hone, Inc. may assign its rights and obligations hereunder to any party or entity without Client’s consent. All obligations and duties of Client shall be binding on all successors in interest and assigns. Hone, Inc. may, in its reasonable discretion, engage one or more subcontractors in connection with the delivery of Services. These Terms may be executed, scanned and e-mailed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. Client agrees that Hone, Inc. may use Client’s name in a reasonable manner for the purpose of references, presentations, and customer identification lists, brochures, manuals and marketing. Neither party shall be liable for any delay or failure in performance caused by fire, accident or casualty, or failure of transportation, power, floods and other natural catastrophes, war or acts of war or of a public enemy, civil riots or disturbances, governmental law, order or regulation, or any other cause of like or different nature beyond such party’s reasonable control.