Terms of Service
Terms of Service
This Terms of Service (the “Agreement”) is made by and between you (“Client”) and Spiewak Marketing LLC, a New Hampshire limited liability company dba Comet Fuel (“Agency”). Each of Client and Agency may hereinafter be referred to as a “Party” or collectively as the “Parties”. Capitalized terms not defined in context have the meanings ascribed in Section 16.
Services. From time to time, Client may engage Agency to perform certain
services pursuant to the terms herein. Agency agrees to perform the services described to the agreed upon terms
(the “Services”). Services can include:
- Google Ads Accelerator™ (“Accelerator”).
- Clicks to Cash™ (“Management”).
Service Exclusions. Unless otherwise specifically set forth, our Services under
this Agreement do not include:
- Email marketing
- Site design and development outside of landing pages on Agency’s preferred platform
- Hosting, email service, domain, or similar services
- Creation of photographs, icons, or graphic designs
- Maintenance of website, plug-ins, or social media tools
- Writing or editing legal documents and other legal work
- Responsibility for performance of third-party services Agency may be managing
- Fees; Expenses. Client agrees to pay Agency the agreed upon fees. Unless otherwise specified, Client shall pay invoices within 7 days of receipt. Work may not begin or may cease to continue until invoices are paid. An invoice may be prorated to reflect a normal billing period. Work will not begin until after the first payment is received.
Accelerator Guarantee. During the Accelerator, Client will be presented with the
strategy approval deliverable (“Strategy”).
- If Client is dissatisfied with the Strategy and Agency fails to revise the Strategy in a manner Client is comfortable with approving: (i) Client will terminate the Agreement with written notice; (ii) Agency will refund Client 100% of fees paid for the Accelerator; (iii) Agency will promptly issue a payment to Client for 100% of fees paid or another amount previously agreed; (iv) Client will, in no way, use any part of the Strategy without repaying all fees to Agency.
- If Client approves the Strategy: (i) Agency will complete the rest of the Accelerator (ii) Client agrees that upon acceptance of the Strategy, Client is no longer entitled to a money back guarantee.
- If Agency is unable to obtain feedback or approval on the Strategy from Client in a reasonable amount of time, Agency must notify Client in writing that they have 24 or more hours to provide either feedback or approval. After which Agency may (i) consider the Strategy approved by Client or; (ii) terminate the agreement without a refund to Client.
- Management Fees. Invoices will be sent on a monthly basis, according to the previously agreed rates, at the start of each month. The first invoice may be prorated to reflect a normal billing cycle that starts on the 1st of each month.
- Purchasing of Advertising Materials. Agency may, notwithstanding its status as an independent contractor, enter into agreements on behalf of Client with third parties (“Third-Party Suppliers”) for the purchase of materials, provision of services and obtaining of licenses and rights in connection with the planning, preparation, creation and placement of advertising and marketing materials regarding Client and its products and services (“Advertising Materials”). Client shall be responsible for payment of Third-Party Suppliers only if such expenditures (or estimates where appropriate) are approved by Client in advance in writing (email suffices). For avoidance of doubt, Agency may include Third-Party Supplier fees within its agreed-upon fees, in which case it shall be responsible to pay the same, rather than obtaining Client’s consent to pay them directly. Where Client is responsible to pay Third-Party Suppliers, it will do so in accordance with the terms of Agency’s agreement with such Third-Party Supplier’s.
- Client Obligations. Client shall (A) timely provide Client Materials necessary for Agency’s performance of its services; (B) ensure that Client stakeholders are available and responsive over the course of the project; (C) ensure that all Client feedback and approvals are provided through a single point of contact; (D) provide any access necessary for Agency to perform its services. (“Client Obligations”); and (E) treat Agency and its personnel with respect and professionalism. If Client repeatedly or unreasonably fails to perform the Client Obligations, Agency may provide written notice specifying the failure and request that Client correct the failure. If Client does not correct the failure within 7 days of its receipt of the notice, Agency may, by written notice to Client, stop work and invoice for services provided through the date of work stoppage.
- Acceptance. Client shall accept or reject each Deliverable in writing within 7 days of receipt (the “Approval Period”). Deliverables may only be rejected for materially failing to conform to Specifications. Notice of rejection must be in writing and specify the reasons for rejection. If Client does not accept or reject a Deliverable within the Approval Period, it is deemed accepted. Upon receipt of a timely rejection notice, Agency will promptly correct any non-conformities at Agency’s expense.
Termination. The party can only terminate the Agreement in accordance with this
- For Breach. Either Party may terminate the Agreement upon written notice to the other Party if the other Party materially breaches any agreements: (i) immediately if the breach is not reasonably capable of being cured; or (ii) the breach is reasonably capable of being cured and the breaching Party fails to cure the breach within 30 days of receipt of a written notice describing the breach in reasonable detail.
- For Convenience. Client may terminate the Agreement for reasons other than Agency’s breach (including its convenience) by giving Agency written notice of termination. In the case of a termination pursuant to this provision by Client: (i) Agency shall be entitled to retain all amounts paid prior to termination unless previously agreed upon; (ii) Client shall pay all outstanding invoices in accordance with Section 3 above; (iii) Agency shall promptly prepare and issue a final invoice (the “Final Invoice”) for (a) fees for Services (prorated if fixed fee) performed and expenses incurred but not invoiced prior to termination, (b) non-cancellable commitments; and (iv) Client shall pay the invoice pursuant to the terms of Section 3 above.
- For Poor Relationship. Agency may terminate the Agreement upon written notice to Client if Client acts disrespectfully to Agency or its personnel, makes unreasonable demands, or (without Agency’s approval) engages another agency or consultant with services that overlap or interfere with Agency’s.
- Confidential Information. Each party (the “Discloser”) may disclose Confidential Information to the other party (the “Recipient”) in connection with this agreement. The Recipient agrees to (i) maintain the Confidential Information in confidence; (ii) protect the Confidential Information with a reasonable degree of care, including employing industry standard security procedures to prevent unauthorized disclosure of Confidential Information; (iii) not use the Confidential Information except in the performance of its obligations under this agreement; and (iv) disclose the Confidential Information only to those of its employees and agents who have a need to know the Confidential Information and who are bound by agreement or law to maintain the confidentiality of the information.
- Intellectual Property. Subject to Agency’s receipt of payment under the Agreement, Agency assigns to Client all of Agency’s rights in the Deliverables (other than its rights to the Agency Tools). Upon assignment, Agency grants Client a nonexclusive, royalty-free, worldwide license to use, modify, display, and otherwise take full lawful advantage of the Agency Tools in connection with the Deliverables.
- Promotional Rights. Agency may (i) publicize the fact that Client is Agency’s client; (ii) describe the nature of its work for the Client; and (iii) subject to any reasonable restrictions imposed by Client, utilize Client’s trade name(s) and trademark(s) in connection with its publicity.
- Mutual Warranties. Each party warrants that (i) it is authorized to enter into and perform this agreement; (ii) entering into and performing this agreement will not conflict with any other agreement to which the party is bound; and (iii) it will perform under this agreement in accordance with applicable law.
- Agency Warranties. Agency warrants that (i) it will perform its services in a professional manner and in accordance with industry standards; (ii) it will assign personnel who are reasonably experienced and qualified to perform its services; (iii) upon delivery and for a period of 7 days thereafter, the Deliverables will materially conform to the Specifications; and (iv) to its knowledge, the Deliverables will not, if used by Client as contemplated by the Agreement, infringe any third-party intellectual property rights.
- Client Warranties. Client warrants that, to its knowledge, the Client Materials will not, if used by Agency as contemplated by the Agreement, infringe any third-party intellectual property rights.
- Disclaimer. Except as provided in this Section, each party’s performance under this agreement is provided “AS IS” and without other warranty, including without limitation any warranties arising from the course of performance, course of dealing, or usage of trade.
Indemnity & Limit on Liability.
- Indemnity. Subject to Section XII B, Agency shall indemnify and defend Client and its employees, officers, directors, shareholders, members, and managers (collectively, the “Indemnitees”) from any damages, expenses, fees, fines, penalties, expenses (including reasonable attorney’s fees) and costs incurred by the Indemnitees in connection with any third-party claim arising out of Agency’s breach of this agreement, negligence, or intentional wrongdoing (a “Claim”). As a condition to Agency’s indemnification obligation, the Indemnitees shall give Agency prompt written notice of any Claim or potential Claim. In any defense, (i) Agency has the sole right to defend and settle the Claim using counsel of its choosing; and (ii) the Indemnitees shall reasonably cooperate with Agency in the defense and settlement of the Claim.
- Exclusions. Agency is not liable under Section XII A to the extent that Claims result from: (i) the negligent or willful acts of an Indemnitee; (ii) Agency’s compliance with the instructions of Client; or (iii) a claim that a Deliverable is infringing where the alleged infringement is due to modifications made by (or on behalf of) Client.
- Limit on Liability. Each party’s maximum liability in any action relating to the subject of this agreement is limited to the total fees payable by Client pursuant to the service that is the subject of the dispute. This limitation does not apply to damages arising from a party’s gross negligence or intentional wrongdoing, the Conversion Fee, or to attorney’s fees and costs payable pursuant to Section XV. Neither party is liable for any claim for lost profits or similar damages, even if foreseeable and regardless of the form of action.
- Non-Solicitation. The parties shall not, while services are being performed by Agency and for one year after the last day on which services were provided, solicit, induce, or recruit, directly or indirectly, for itself or for any other party, the other party’s employees. The parties agree that damages resulting from a breach of this Section XII would be difficult to quantify, but that a reasonable estimate of such damages is 50% of the total compensation paid to the subject employee in the twelve months preceding the breach (the “Conversion Fee”). As liquidated damages for breach of this provision, the breaching party shall pay the Conversion Fee to the other party.
- Governing Law; Jurisdiction; Venue. New Hampshire law governs this agreement, exclusive of its conflict of laws principles. The state and federal courts for Hillsborough County, New Hampshire are the exclusive venue for resolving any disputes under this agreement. The parties consent to the personal jurisdiction of such courts, and waive defenses concerning venue and convenience of forum.
- Taxes. Agency shall pay all taxes on its income and employment taxes for its personnel. Client shall pay any sales, use and value added taxes.
- Relationship of the Parties. Agency is an independent contractor and not Client’s partner. The parties are not engaged in a joint venture. Agency’s employees are not to be considered Client’s employees for any purpose. Agency is solely responsible for the means and manner of performing the services.
- Attorney’s Fees. The prevailing party in any dispute regarding the subject of this agreement is entitled to recover its reasonable attorney’s fees, expert’s fees, and costs.
- Entire Agreement. This agreement is the entire agreement of the parties with respect to its subject. All prior and contemporaneous agreements are superseded. This agreement may only be amended by a writing signed by both parties.
- Cooperation. This Agreement is the product of negotiation between sophisticated parties, and will not be construed in favor of or against either party.
Definitions. The following terms have the meanings given:
- “Agency Tools” means Agency’s intellectual property (including its designs, methods, software, and trade secrets) that either preexist this agreement or are developed by Agency other than in providing services for Client under this agreement. Agency Tools includes any improvements that are not uniquely applicable to the Deliverables.
- “Client Materials” means all documents, information, designs, data, specifications, graphics, logos, trademarks, written content, and other materials provided by or on behalf of Client to be used by Agency in connection with the preparation of or incorporated into the Deliverables.
- “Confidential Information” means information that, either, is identified as confidential upon disclosure, or that the Recipient should understand to be confidential under the circumstances; provided, Confidential Information does not include information that: (i) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by the Recipient; (ii) at the time of disclosure is, or thereafter becomes, available to the Recipient on a non-confidential basis from a third-party source, provided, such third party is not and was not prohibited from disclosing such Confidential Information to the Recipient by any contractual obligation; (iii) was known by or in the possession of the Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of the Discloser pursuant to this agreement; or (iv) was or is independently developed by the Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Discloser’s Confidential Information.
- “Deliverables” means the final versions of the materials produced and delivered by Agency pursuant to this agreement. Deliverables may include Client Materials, Agency Tools, Work Product, and Advertising Materials.
- “Specifications” are functional or technical specifications for work described in an SOW or that have been otherwise agreed to in writing by Client and Agency.
- “Work Product” means the materials first created by Agency for Client in the course of performing the services pursuant to this agreement.
- Executed and agreed to be effective as of Agency’s receipt of Client payment.