This agreement (“Agreement” or “Terms”) between Brick and Mortar Digital “BMD” (and/or “we” /” our”) and you the “Client” (and/or “you” / “your”) defines the terms and conditions of our working engagement. By hiring BMD either via signed contract, any written approval of services, or continuing to utilize BMD services beyond the initial terms of our agreement, you attest that you have read and agreed to the following Terms regarding our relationship.
BMD will act as an independent contractor for the specific project to provide one or more of the following services (“Services”). These Services are agreed to in the duly executed proposal or via other written approval (“Proposal”):
Timelines for all Services will be delivered in accordance with the Proposal.
BMD reserves the right to engage third-party service providers (“Third Parties”) to perform certain tasks as part of our Service offerings. These tasks may include, but are not limited to, payment processing, data analysis, email delivery, hosting services, customer service, and advertising and marketing efforts.
We may share your information with these Third Parties in the course of their provision of services to us. We ensure that all Third Parties are bound by confidentiality obligations and are required to use your information solely for the purpose of performing the services we have engaged them to provide.
By using our Services, you consent to the transfer of your information to these Third Parties and the processing of your information by these Third Parties as described in this section.
While we choose our Third Parties carefully and work closely with them to ensure your data is handled securely, we are not responsible for the privacy policies or practices of these Third Parties. We encourage you to review the privacy policies of any Third Parties you interact with as a result of using our Services.
BDM retains the right to modify or replace our Third Parties at our sole discretion and without prior notice to you.
BMD may initiate paid advertising campaigns on behalf of our Client’s through various digital platforms, including but not limited to pay-per-click (“PPC”) platforms, social media networks, and Google Ads (collectively, “Advertising Platforms”).
You agree to provide timely payment for all advertising costs incurred as part of your campaign, in accordance with our billing policies. You acknowledge that these costs will be determined by the Advertising Platforms and may vary based on factors such as ad placement, competition, and bidding strategy.
You hereby authorize us to act as your agent in all interactions with Advertising Platforms, including but not limited to the submission of advertisements, the negotiation of placement, and the agreement to any terms or conditions that may be required by such platforms for the purpose of advertising. You also agree to indemnify BMD for any and all fees, actions, complaints, charges, and liabilities associated with Advertising Platforms, regardless of whether or not BMD issued commitments or acted on your behalf and/or made modifications to a PPC campaign.
The Client understands that BMD will need their full and timely participation in order to compete our Services. This may include assets (e.g. images or written content), logins, feedback, direction, or other information. You agree to aid us in doing or providing what is needed to assist in our efforts and in a timely manner. On the occasion that specific formats of assets or information are needed you agree to provide them in the requested format.
We both agree to honest communication, giving our best effort, and working hard to help each other succeed. This includes you expressing any questions or concerns you have along the way, timely payment for services, and the like.
Client agrees to pay the Proposal price for each month of retainer services, or as described for deliverables in the Proposal. Services will be billed at two-weeks in advance and will be due on the first day of the month in which retainer services are to be provided. Projects with one-time deliverables will be billed in accordance to our agreement, and this is typically 50% upon agreement and 50% at completion, unless the project will take a longer amount of time.
BMD has the right to suspend or terminate the Agreement with a seven-day notice in the event the services are not paid as agreed by the Client. BMD also reserves the right to suspend campaigns or other work products in the event of non-payment. If invoices are delinquent for thirty (30) days after its due date, an additional penalty of 5% per month will be assessed for each month of delinquency.
Pricing is based on current scope of work. In the event additional services are required or there is a change in the scope of work or digital marketing spend, BMD reserves the right to adjust our pricing for additional services. Further, after the term of the original Agreement, the Client understands that costs may be adjusted based on BMD’s current rates.
All digital spend amounts and associated costs will be billed to the Client’s credit card via the service provider.
BMD may require certain tools, software or services to support our efforts. Client agrees to be responsible for all cost one-time or monthly for such tools/software. BMD agrees that it will not purchase or subscribe to such software without pre-approval from the Client.
Client agrees that BMD will be fully in charge of establishing digital strategy, managing day-to-day work/tasks, and managing all of the current internal digital marketing resources (employees, contractors, etc.).
Client agrees that all digital resources will report to BMD on an as-needed basis to implement the strategy and assets effectively. Resources will be managed and provided tasks to support the digital strategy, day-to-day tactics, and the daily management agreed to by BMD and the leadership of the client.
Client agrees to allow BMD to use clients name, logo, and website for company promotions, online portfolio, past clients list, on social media, in print material, etc. for advertising and promoting BMD’s services to other companies.
Client may only use BMD’s services for lawful purpose. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, pornographic, profane, or material protected by trade secrets. This also includes links or any connection to such materials.
The Client represents (informs) to BMD and unconditionally guarantees that any elements of text, graphics, videos, photos, content, designs, trademarks, or other artwork furnished to BMD for inclusion in web pages, social media, etc. are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements. Client agrees to hold harmless, protect, and defend BMD from any claim or suit arising from the use of such elements furnished by the Client.
Client agrees the term of this Agreement will be for one year, unless otherwise specified in Proposal. After the initial term of the Agreement, the Agreement will automatically renew to a month-to-month relationship, or until new terms are agreed to.
Either party may terminate the Agreement with 30-day written notice. In the event the Client exercises this 30-day out clause prior to the end of the initial year, all digital intellectual property will remain under the ownership of BMD. Should the client wish to transfer the ownership of the intellectual property, all monies for the remainder of the Agreement (prior to final termination date) will become due. Client agrees to give required logical access (usernames and passwords or delegated access) to BMD to complete its work.
Termination Fee and Transition Assistance: Upon the termination of this Agreement, for any reason, the Client agrees to pay BMD an amount equivalent to one (1) final month of retainer services (“Termination Fee”). This fee is to facilitate a comprehensive offboarding process, which may include but is not limited to, assistance with account transitions, training for the Client’s internal team, and the handover of responsibilities to another agency or entity as required for a seamless transition. For the avoidance of doubt, the parties hereby agree that the Termination Fee (and Full-Term Termination Fee – if applicable) is a reasonable estimate of BMD’s anticipated damages upon a termination and is not a penalty.
Obligation of Payment: The obligation to pay the Termination Fee will apply regardless of whether the Client chooses to utilize BMD’s services for the offboarding process. If the Client elects not to engage BMD’s assistance during the termination period, the Termination Fee remains due and payable as stipulated.
Full-Term Termination Fee: In addition to the Termination Fee, should the Client terminate this agreement prior to the completion of the agreed term, the Client will also be responsible for a termination fee equivalent to the total amount of the retainer fees for the remainder of the term (“Full-Term Termination Fee”). This is to compensate BMD for the loss of the anticipated revenue for the full-term of the agreement. For the avoidance of doubt, the parties hereby agree that the Full-Term Termination Fee is a reasonable estimate of BMD’s anticipated damages upon a termination and is not a penalty.
One-Month Penalty: Furthermore, a penalty equivalent to one month’s retainer fee will be imposed on the Client in addition to the Full-Term Termination Fee. This penalty is instituted as a deterrent against premature termination and to further ensure stability and planning security for both parties involved in the Agreement.
Total Amount Due: The total amount due upon termination will include the Termination Fee, the Full-Term Termination Fee (if applicable), and the One-Month Penalty. This comprehensive fee structure is designed to ensure that BMD is adequately compensated for the initiation of the Agreement, the resources allocated, and the potential disruption caused by an early termination.
The parties acknowledge that the internet is neither owned nor controlled by any one entity; therefore, BMD can make no guarantee the results that may be provided as a result of our work. BMD represents that in good faith it shall make every effort to ensure that the clients digital marketing is successful and leads or purchases are generated as a result of our work. BMD does not warrant that the functions supplied by its work, web pages, digital marketing, consultation, advice, or work will meet the Client’s requirements or that the operation of the work/deliverables will be uninterrupted or error-free. The entire risk as to the quality and performance of the work and deliverables is with Client. In no event, will BMD be liable to the Client or any third party for any damages, including any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate these digital marketing services or website(s), even if BMD has been advised of the possibility of such damages.
BMD’s liability for default or breach, including breach of any guarantee or warranty expressed within this Agreement, shall be limited to the lesser of (i) the amount actually paid to BMD by Client under this Agreement or (ii) five thousand dollars. BMD is not responsible for loss of income or projected loss of income for any reason, including, but not limited to, server failure, traffic variation, website unavailability, digital spend changes, campaign status, order decreases, search engine algorithm changes, manual optimization actions by search engines, keyword position decreases, data corruption, or data loss. Client is responsible for, and BMD has no liability for, the content, products, services, trademarks and other aspects of the website that are related to Client’s business, industry, and competitors.
BMD, its employees and subcontractors agree that, except as directed by the Client, it will not at any time during or after the term of this agreement disclose any non-public confidential information to any person whatsoever. Likewise, the Client agrees that it will not convey any non-public information obtained about BMD to another party.
During the term of this Agreement and for a period of three (3) years after the Termination Date of all Agreements with BMD, Client agrees to take no action which is intended, or would reasonably be expected, to harm BMD or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to BMD.
During the term of the Agreement with BMD and for a period of three (3) years after the Termination Date of all Agreements with BMD, Client will not directly or indirectly solicit, induce or attempt to induce any current employee, former employee, or vendor of BMD to terminate his or her employment or services with BMD or to perform any work or services for Client or any of Client’s customers, vendors, or affiliated companies. Client acknowledges and agrees that the breach of this Section by Client would cause BMD irreparable injury and agrees to fully compensate BMD a minimum payment of at least three (3) forecasted future years of fully loaded compensation at a minimum.
Security of the Services shall be provided on a best-efforts basis. Notwithstanding the foregoing, the Customer acknowledges that BRICK & MORTAR shall not be responsible for the security of Customer’s network, servers, accounts, or web site.
You must designate on at the time of Your Proposal including a mailing address and e-mail address to which BRICK & MORTAR may mail or deliver notices and other communications. All notices You send to BRICK & MORTAR must be in writing, by certified mail or e-mail, sent to:
BRICK & MORTAR DIGITAL, LLC
125 E. 3rd Street
Ste. 100
Rochester, MI 48307
If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, the remaining provisions will nevertheless remain in full force and effect. One or more waivers of a breach of the terms and conditions of this Agreement shall not constitute a waiver of any future breach thereof. In the event of a conflict between the Terms and Proposal, the Proposal shall control.
YOU AGREE THAT ANY CLAIM AGAINST BRICK & MORTAR, WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE, MUST BE BROUGHT WITHIN 6 MONTHS OF THE DATE GIVING RISE TO THE CLAIM.
This Agreement and Your Proposal set forth the entire Agreement and understanding between the parties and merges all prior discussion between them. This Agreement may not be modified except by the written consent of both parties.
At all times, You will bear the risk of any loss, damage or destruction of Your domain, site, accounts, software, and any assets left in the care, custody, control of BRICK & MORTAR.
You agree to indemnify, defend, and hold BRICK & MORTAR harmless, as well as its subsidiaries, affiliates, officers, directors, employees, agents, licensors, consultants, suppliers, and any third-party service provider, from and against all claims, demands, actions, liabilities, losses, expenses, damages, judgments and costs, including attorneys’ fees, resulting from Your violation of this Agreement, misuse or abuse of the Service, violation of State or Federal law, or infringement thereof by You or Users of Your account. BRICK & MORTAR reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You. You must not in any event accept a settlement of any dispute relating to this contract without prior written consent of BRICK & MORTAR.
If legal proceedings are instituted to enforce any or the terms and conditions of Your Retainer or this Agreement, You agree to pay all costs of BRICK & MORTAR in connection therewith, including actual attorneys’ fees.
This Agreement shall be subject to and governed by the laws of the State of Michigan. Any claim under this Agreement may be arbitrated in Oakland County Michigan if BRICK & MORTAR gives advanced written consent to You to arbitrate. Notwithstanding the foregoing, venue for any legal action arising out of this Agreement shall be exclusively within the State of Michigan, Oakland County Circuit Court, Rochester, MI State District Court, or the Federal District Court for the Eastern District of Michigan.