BLACK BEAN, LLC
MASTER SERVICES AGREEMENT
This Exclusive Marketing Agreement (the “Agreement”) is made and entered into as of the month, day and year to which you check acceptance during the sign up process by and between Black Bean Media, LLC, a Colorado Company having its principal place of business at 2020 N Academy Blvd, Ste 261 #1663 Colorado Springs, CO 80909 (the “Agency”) and You (the “Client”) (each individually a “Party,” and referred to collectively herein as the “Parties”).
WITNESSTH
WHEREAS, the Agency is a promoter and broker of marketing campaigns;
WHEREAS, the Client desires to hire the Agency to promote and market its products to be provided to Agency through their onboarding form(s);
WHEREAS, the Client desires to hire the Agency to be the exclusive native marketer and promoter of the Client’s products; and
WHEREAS, the Parties desire to set forth their agreements regarding the foregoing.
NOW, THEREFORE, in consideration of the mutual benefits to be derived from the above, the mutual promises hereafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
a. The Agency, in its sole discretion, shall use all reasonable efforts to advertise, market, generate, and secure for the Client paid customers or leads (hereinafter “Acquisitions”) through marketing efforts.
b. The Agency, in its sole discretion, shall provide all reasonably necessary marketing materials, and shall assist the Client in setting up tracking tools which are needed to market the Client’s products. All marketing materials may be hosted on the Client’s servers while the campaigns are active.
c. The Agency shall be the Client’s exclusive native marketing agent for all of the advertising, marketing, and promotion (collectively, the “Advertising”) of the Client’s products and services listed on Exhibit A (the “Products and Services”). The Client shall not enter into any agreements with any other persons or entities during the term of this Agreement to advertise the Products and Services.
d. The Client shall document on Exhibit A all existing native advertising relationships related to the Products and Services and shall transfer the management of all such Advertising to the Agency, except as provided in a writing signed by the Agency, and in the Agency’s sole discretion.
a. The Agency shall be paid upfront for the chosen plan through the Agency’s website.
a. This Agreement shall be effective as of the date when payment is received and shall continue for the agreed upon plan that the Client chose through the sign-up process (the “Term”).
b. If either the client or the agency wishes to terminate this Agreement prior to the end of the Term it must do so in writing in accordance with section 18 below. Client will be entitled to a pro-rata refund consistent with the Termination of Service provision in Exhibit A to this Agreement.
a. The Agency shall provide the Client with access to the traffic source platforms and will provide weekly reports that will detail any advertising buys and/or activity on all acquisitions generated by the Agency.
b. The Client shall provide the Agency with reports with detailed Acquisition activity, including customer information of any non-approved Acquisitions, on a weekly basis.
c. The Client shall use its best efforts to minimize the amount of charge backs and/or refunds.
d. The Client agrees to provide the Agency with original access to all reports, statements, and reporting interfaces which provide metrics including, but not limited to, traffic volume of sited, split testing results, conversion rates, quantities of transactions, and sales revenues. These reports, statements, and reporting interfaces may include, but are not limited to, merchant credit card processor interfaces, ad serving software, affiliate management software interfaces, and website and click stream testing, tracking, and reporting interfaces. The Client agrees to install the Agency’s tracking pixels on any pages which the Agency in its sole discretion deems necessary. The Client will also provide any needed post backs which are essential to tracking any needed Client conversions. The Client acknowledges that these are essential for the Agency to help establish baseline metrics, help measure progress, provide reporting, optimize towards the Clients stated goals and help make any needed recommendations.
a. The Client shall have the sole right and responsibility of processing all orders and leads through every aspect of the transaction, including, but not limited to, receiving, filling, shipping and handling, collecting payment, tracking, customer service, and technical support.
a. The Client agrees to participate as a testimonial and case study subject based on the Client’s experience. Such testimonial(s) may then be used by the Agency to provide to its prospective and existing clients. The Client agrees and understands that participation as a testimonial and case study subject will be done with no compensation in any form, at any time, now or in the future.
a. The Client represents to the Agency that any elements of text, graphics, photos, designs, trademarks, or other artwork or intellectual property furnished to the Agency are owned by the Client, or that Client has permission to use the same from the rightful owner. The Client retains all rights in any such intellectual property so furnished to Agency and gives Agency a license to use such intellectual property for the purposes described herein. Client agrees to indemnify and hold Agency harmless for any claims brought against it related to the unauthorized use of any elements of text, graphics, photos, designs, trademarks, or other artwork or intellectual property furnished to the Agency by the Client.
b. All materials, documentation, computer programs, inventions (whether or not patentable), pictures, copies, creatives, web pages, audio, video, artistic works, logos, graphics, text, files, advertisements, and the arrangement and organization of the content of any sites created or optimized by the Agency, as well as the underlying technology, software and all works of authorship, including all worldwide rights therein under patent, copyright, trade secret, or other property right, created or developed by the Agency are owned by the Agency, and shall not be considered “work for hire.”
c. The Agency shall own any domain names registered by the Agency. The Client has a revocable license to use Agency’s intellectual property created for the Client. The Client’s sole right to use any such property is limited to the rights granted to the Client by this Agreement, which rights may be terminated by the Agency at any time in a writing signed by the Agency. All such ownership shall survive the termination of this Agreement. The Client agrees it does not have, nor will it ever claim any right, title or interest in the ownership or other rights of the Agency. If the ownership of all right, title, and interest of the intellectual property rights created by the Agency shall not otherwise vest exclusively in the Agency, the Client hereby assigns to the Agency, and upon the future creation thereof, automatically assigns to the Agency, without further consideration, the ownership of all such intellectual property.
a. The Client shall at all times ensure that the content and display of all advertisements, URL links, copyrights, trademarks, and other intellectual property rights for trademarks, technology, materials and other items provided by the Client to the Agency complies with all federal, state, and local laws, rules, and regulations, and that such materials do not violate any privacy, copyright, patent, or trade secret rights. The Client shall maintain compliance with all governmental, regulatory, and other legal requirements applicable to the Client’s products, services, and performance of its obligations under this Agreement. If the Agency receives a complaint from a third party alleging that the advertisements infringe a third party’s copyright, trademark, or other intellectual property rights, the Agency shall have the right to disable the advertisements at issue without notice to Client.
b. The Client agrees that any material furnished to the Agency will not contain anything of an abusive or unethical nature and that submission of same to the web hosting account or host server will not violate any privacy right, contain any computer viruses, contain harassing or harmful material, further any illegal activity, infringe on any intellectual property right, or contain any libelous material. The Agency may deactivate the use of an account which the Agency decides, in its sole discretion, is an abusive or unethical use of, or a possible illegal use of, the web hosting account or host server.
c. The Agency will obtain written approval from the Client prior to putting any advertising, promotional, or marketing creatives live. Once the Agency obtains written approval from the Client, the Agency is not responsible for any liability associated with that activity or promotional item.
a. If the Client becomes aware of any litigation, audit, or investigation concerning its products, services, practices, or procedures by any governmental agency or other business, the Client will immediately notify the Agency, even if such litigation or investigation does not relate to any advertising campaigns or marketing by the Agency.
a. The Agency has proprietary relationships with its employees, publishers, native platforms and other business entities that the Client may come to discover during the Term of this Agreement. During the Term of this Agreement and afterward, the Client, on behalf of itself or any other person or entity, or by assisting others, shall not: (a) solicit any current or former employee of the Agency for employment by the Client for a period of two years following the termination of this Agreement; or (b) circumvent the Client’s obligations under this Contract by soliciting, inducing, or otherwise entering into a business relationship with any person or entity known by the Client to have a business relationship with the Agency for purposes of obtaining advertising similar to that provided for in this Agreement. The Client agrees that these restrictions are reasonable and necessary to accomplish the purposes of this Agreement and to protect the business interests of the Agency. In addition to the Agency’s rights and remedies under this Agreement or at law, Client agrees that monetary damages for a breach of, or a threatened breach of, this Agreement will not be adequate, and that the Agency shall be entitled to seek injunctive relief (including temporary and preliminary relief).
a. UNDER NO CIRCUMSTANCES SHALL THE AGENCY OR its officers, agents, or anyone else involved in creating, producing, or distributing its services BE LIABLE TO THE CLIENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS OR LOST DATA WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTORY OR ANY OTHER THEORY OF LEGAL OR EQUITABLE LIABILITY ARISING FROM THIS AGREEMENT OR RELATED TO THE SUBJECT OF THIS AGREEMENT, OR ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY REMEDIES HEREUNDER AND APPLY REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE AGENCY’S SOLE LIABILITY TO CLIENT FOR BREACH OF THIS CONTRACT SHALL BE THE RETURN OF ANY UNEARNED FEES.
b. THE AGENCY MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES PROVIDED UNDER THE TERMS OF THIS AGREEMENT. THE AGENCY MAKES NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES OF ANY KIND WITH RESPECT TO ANY MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT.
a. Agency agrees to send ad campaign materials to the Client at least twenty-four (24) hours in advance of publication for the Client’s review and comment. Client assumes all risk related to the content of the ad campaign including but not limited to clerical errors, mistakes, or misrepresentations. If the client does not object within 24 hours of receipt of the ad campaign it will be published.
a. “Confidential Information” includes all information or material that has or could have commercial value or other utility in the business in which the Disclosing Party is engaged which could be reasonably assumed to be confidential. Confidential Information includes, but is not limited to, campaign plans, trade secrets, sales and profit figures, client lists, opportunities for new or developing business, and advertising and promotion materials. The information may be contained in written materials such as computer hardware and software, disks, documents, files, drawings, business plans, manuals, chat services and projections, or it may consist of unwritten knowledge, including ideas, research, processes, practices, or know-how. The Receiving Party's obligations under this Agreement do not extend to information that is: (a) publicly known at the time of disclosure or that subsequently becomes publicly known through no fault of the Receiving Party; (b) discovered or created by the Receiving Party before disclosure by the Disclosing Party; (c) learned by the Receiving Party through legitimate means other than from the Disclosing Party; or (d) is disclosed by the Receiving Party with Disclosing Party's prior written approval.
b. The Receiving Party shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the Disclosing Party. The Receiving Party shall carefully restrict access to Confidential Information to employees, agents, and representatives of the Receiving Party, and will be liable for any unauthorized disclosure by such persons. The Receiving Party shall not, without prior written approval of the Disclosing Party, use for the Receiving Party's own benefit, or publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing Party, any Confidential Information. The Receiving Party shall return to the Disclosing Party any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately upon the Disclosing Party’s written request. The non-disclosure provisions of this Agreement shall survive the termination of this Agreement, and the Receiving Party's duty to hold the Confidential Information in confidence shall remain in effect until the Confidential Information no longer qualifies as confidential, or until the Disclosing Party gives the Receiving Party written notice releasing the Receiving Party from these restrictions regarding the Confidential Information, whichever occurs first.
a. The Client will defend, indemnify, and hold harmless the Agency and its officers, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney's fees and expenses) arising from or related to: (a) any material breach of the Client’s obligations under this Agreement; (b) any claim that the Client’s conduct infringes upon any rights of any third party; (c) any allegation that the Client violated any foreign, federal, state, or local law or regulation; (d) the Client’s improper or unauthorized use of the Agency’s services or intellectual property; (e) any third-party claim related to the Client’s websites, emails, marketing practices, products, or services; and (f) any content, goods, or services promoted, sold, or otherwise made available by the Client on or through the Client’s websites, emails or otherwise.
a. This Agreement, and all exhibits attached hereto, contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, oral or written, with respect thereof.
a. This Agreement may be assigned by the Client to: (a) a corporation, partnership, limited liability company, or other business entity which is directly or indirectly under common ownership or control with the Client; or (b) a third party that purchases a substantial portion of the Client’s assets, provided that the Client promptly provides the Agency with written notice of such transfer in accordance with Section 19 of this Agreement, the Agency consents, and the transferee executes.
a. Each Party represents that the person who has executed the Contract on that Party’s behalf has the actual and express authority from that Party to execute this Agreement and to bind that Party to all of the terms hereof.
a. The Client represents to the Agency that it is not a party to any contract, agreement, or commitment that might impair its ability to perform the duties required of it under the terms of this Agreement.
a. All notices under this Agreement must be in writing and delivered by personal service, confirmed fax, confirmed email, express courier, or certified mail return receipt requested to the address of the Receiving Party as provided herein, or at such different address as may be designated by such Party by confirmed written notice to the other Party from time to time. Notice will be effective as of the date and time of confirmed receipt.
If to Agency:
Name: Black Bean Media, LLC
Mailing Address: 2020 N Academy Blvd, Ste 261 #1663
Colorado Springs, CO 80909
Email Address: michael@blackbeanagency.com
If to Client:
Name: Name You used during the sign-up process.
Mailing Address: Address You used during the sign-up process.
Email Address: Email Address You used during the sign-up process.
a. This Agreement shall be governed by the laws of the State of Colorado. The Parties agree that any action to construe the provisions of this Agreement or to enforce the rights and obligations contained herein shall be filed in a court of competent jurisdiction in El Paso County, Colorado, and that the Parties waive any objections to such forum on the grounds of inconvenience or lack of personal jurisdiction. In any proceeding, whether legal, equitable, or arbitration arising out of or related to this Agreement, if the Agency prevails, the Agency shall be entitled to recover all reasonable attorney’s fees and all reasonable costs associated with the proceeding, specifically including, but not limited to, the costs of expert witnesses, travel expenses, and the costs of collection of any judgment.
a. If any dispute arises under, out of, or related to this Agreement, the Parties agree to submit the dispute to Mediation.
b. The Parties will jointly appoint an acceptable mediator and will share equally in the cost. The mediation is to take place in El Paso County, Colorado. If the Parties are unable to resolve their dispute within thirty (30) days of the date written notice requesting mediation is delivered in accordance with Section 18 above, then the parties shall proceed to binding arbitration.
c. The Agency and the Client shall proceed to binding arbitration before a mutually agreed‐upon single neutral arbitrator in El Paso County, Colorado. The arbitration process shall begin by written notice by one Party to the other. If the Parties cannot agree upon an arbitrator within thirty (30) days of receipt of written notice, either Party may apply to the Supreme Court in El Paso County to appoint an arbitrator. The arbitration will be decided according to the substantive law of Colorado and the Parties agree to follow the procedural rules for arbitration under Colorado law. All reasonable costs of arbitration, including, but not limited to, attorney fees, expert witness fees, and the fees of the arbitrator, shall be awarded to the Agency should it prevail as determined by the arbitrator.
a. No failure of either Party to enforce any of its rights under this Agreement will act as a waiver of such rights. No waiver by either Party of any breach of any provision of this Agreement shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
a. The Parties are independent contractors and agree that the Agency has the right to determine the manner, method, and means by which services will be performed, to set the hours of work and schedule that will be followed, to accept other consulting contracts, and to not participate in any benefit plans of the Client. The Agency will not be eligible for unemployment or workers compensation benefits and will not have any taxes withheld from its fees.
b. Neither Party is an agent, representative, partner, employee, or joint venturer of the other Party, nor shall either Party have any right, power, or authority to enter into any contract on behalf of, or incur any obligation or liability of, or to otherwise bind the other Party, except the Client hereby appoints the Agency as its agent, and gives the Agency authority to sign on the Client’s behalf, for insertion orders and contracts with any media for placement of any advertising in the Agency’s sole discretion.
a. This Contract may not be modified, altered, or amended without a separate written agreement signed by all Parties to this Agreement.
a. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under the present or future laws effected during the terms of this Agreement, such provision shall be fully severable from the remaining provisions of this Agreement and shall not affect the validity of the remaining provisions, which shall be given full force and effect as if the illegal, unenforceable, or invalid provision had not been included in this Agreement. In lieu of an illegal, unenforceable, or invalid provision, there shall be substituted a provision similar in terms to the illegal, invalid, or unenforceable provision as may be possible and still be legal, valid and enforceable.
a. This Agreement shall not be construed as a release of any cause of action based on a breach of any terms contained herein.
a. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, assigns, heirs, and representatives.
a. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Faxed or electronically mailed counterparts of this Agreement shall be deemed to be originals and digital signatures shall have the same force and effect as a signature in pen and ink.
a. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, natural disaster, riots, acts of government, or any other cause beyond the reasonable control of such Party.
IN WITNESS WHEREOF, the Parties have hereunto set their hands as of the month, day and year to which you checked acceptance during the sign-up process.
EXHIBIT A
TERMS OF PAYMENT TO AGENCY
Fees to be Paid by Client:
Campaign Management/Optimization Fee: The Client shall pay to the agreed upon rate as dictated by the selected plan chosen when signing up for the Service.
Advertising Costs: The Client shall pay all advertising costs directly to the platform, publisher or media displaying the advertising, including, but not limited to: media buys, insertion orders, ad serving fees, and fees for all tools for campaigns deemed necessary by Agency in its sole discretion. The Client gives the Agency express authority to enter into and sign on the Client’s behalf all insertion orders and media buys the Agency deems necessary in its sole discretion.
Terms of Payment:
The Client will issue payment upfront based on their selected plan. All funds are payable by Credit Card in U.S. dollars.
Termination of Service:
Agency may discontinue Service for any reason whatsoever. Should the Agency discontinue service, a pro-rated refund will be issued based on the number of days left in the term. For clarity, if the Client signs up for the monthly plan and pays $5,000, which is then canceled 16 days into a 30-day month by the Agency, the Client will receive a refund of $2,333.33.
Black Bean Media is located in Colorado Springs, CO.