Marketwake Terms of Service
Effective as of March 23, 20200
Welcome to Marketake!
Marketwake is a digital marketing agency that often supports clients through managing their website, email marketing platforms, Google My Business accounts, Paid Media accounts and more.
This document, the Marketwake Terms of Service (“Terms”), outlines the terms regarding your use of our products and services. These Terms are a legally binding contract between you and Marketwake so please read carefully. If you do not agree with these Terms, do not register or use any of the Services.
By using, accessing or browsing the Marketwake Services, Momentum or Website Services, and products including applications, mobile, software, websites or other properties owned or operated by Marketwake, or by registering for a Marketwake account ( “Services”) you are agreeing to be bound by these Terms for the Services provided by Marketwake (“Marketwake” or “we”).
If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising to Marketwake that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Services.
In order to use the Service, you must be legally permitted to accept these Terms.
CHANGES TO THESE TERMS
Marketwake reserves the right to modify or replace any provision in the Agreement, or change, suspend, or discontinue the Marketwake Service at any time. It is your responsibility to check the Terms of Service periodically for changes, and your continued use of the Marketwake Service following any changes to the Terms of Service constitutes acceptance of those changes to the Agreement. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
This Agreement states the terms and conditions that govern your access to and use of the Marketwake Website (https://www.marketwake.com), third party web-based software services (we have lots of great technology partners, managed services (https://marketwake.com/website-support-services/ and https://marketwake.com/momentum/), and content (https://marketwake.com/blog/), collectively, the “Marketwake Service”. This Agreement contemplates one or more service orders for the Marketwake Service, which are governed by this Terms of Service, and collectively constitute the Agreement. If there is an inconsistency between this Terms of Service and the service order form, the service order form prevails.
This Terms of Service and service order forms constitute the entire Agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written. Client is not relying on any representations, oral or written, not included in this Agreement. No representation, promise, or inducement not included in this Agreement is binding.
By our engagement to provide services, you recognize that we are management consultants. You are free to accept our advice or not. In that regard you recognize that our Account Management, Marketing Director, Creative Director and Paid Search Directors (or any other of our service providers) services are not to be officially considered “management” in the way that the officers of the Company are traditionally viewed.
Data Security & Privacy Marketwake uses LastPass
(https://lastpass.com/enterprise_overview.php) as our online password vault. Marketwake should be notified of any changes to the log in credentials within 2 business days of the change.
Marketwake may instruct the client to use a software tool like WP Engine, Pingdom or others, which allows Marketwake team members to access hostings and documents necessary to perform the Marketwake Service.
You are responsible for maintaining the confidentiality of your log-in credentials to the Marketwake Service, and will immediately notify us of any suspected unauthorized use of your account, or other account related security breach. You will not use another user’s log-in credentials without the other user’s express permission.
The Marketwake Services are reliant on other websites. Third party sites and services are not under our control, and you agree that Marketwake shall not be responsible or liable, directly or indirectly, for any damage or loss in connection with the use of or reliance on any such content, products, or services available from any such third party.
Not Your Employees
The parties are each independent contractors with respect to the other, and neither party is authorized to act for the other as an agent, representative, or partner.
Newsletters and Similar Communications
We may from time to time send newsletters, emails, explanations of tax law developments, blogs, or similar communications to selected clients, former clients, prospective clients or other interested parties. These communications are of a general nature and are not definitive advice. We do not send all such communications to all clients, former clients, or interested parties. These newsletters do not establish or continue a client relationship with any person, and they do not constitute an undertaking on our part to monitor tax or other issues for you or for any other parties.
Third Party Partners
We routinely receive compensation for making referrals to our technology and other third party partners, which are typically in accordance with their accounting partner programs and published on the partner websites.
Use of the Marketwake Service
Client and its authorized employees, affiliates, and contractors may access the Marketwake Service in compliance with the Agreement and applicable law.
It is Your Information
All data you provide (“Client Data”) and all results derived by the Marketwake Services from the Client Data (“Results”), remain your property.
We will use Client Data solely for purposes of performing under this Agreement. During the term of this Agreement, you may export your Client Data and Results through the use of the Marketwake Service.
During and after the term of this Agreement, Marketwake may use and owns all anonymized Client Data and Results within the Marketwake Service for purposes of enhancing the products & services, aggregated statistical analysis, technical support, and other business purposes.
CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION
By registering with Marketwake or signing up for Services, you understand and consent to us sending you (including via email) information regarding the Services, such as: (a) notices about your use of the Services; (b) updates to the Services and new features or products; (c) transactional messages; (d) administrative messages and other information; and (e) advertising, marketing, and other materials regarding Marketwake’s products and services. Please review your settings in your account to control the messages you receive from us or you may choose to opt-out of receiving advertising and marketing materials by unsubscribing from such communication s by following the instructions in the message.
Notices emailed to you will be considered given and received when the email is sent.
We Love to Brag About Working With You
You agree to allow Marketwake to use your trademarks, logos, trade names, and a description of the business relationship between us, in any Marketwake marketing and sales promotion materials. Please let us know if you are interested in being featured in the customer story section of our website.
Payment of Fees
If purchasing a subscription service (Momentum, Website Support etc..) you may elect one of the following subscription plans and billing options (please note that there might be only one of these options available depending on the Service purchased):
A monthly subscription plan (“Monthly Subscription Plan”). The subscription period for the Monthly Subscription Plan will be for one month and will automatically renew (without the need to go through the Services-interface “check-out” or execute a renewal order form) unless you cancel your Monthly Subscription Plan at least three (3) business days prior to the renewal date. You will be billed on or about the same day each month until such time that you cancel.
An annual subscription plan (“Annual Subscription Plan”). The subscription period for the Annual Subscription Plan will be for one year and will automatically renew (without the need to go through the Services-interface “check-out” or execute a renewal Order Form) for additional periods equal to one (1) year each year on the anniversary unless you cancel at least three (3) business days prior to your renewal date. You will be billed annually on or about the same day each year until such time that you cancel. Be aware that you are committing to a one-year plan; if you are not certain, we recommend choosing the Monthly Subscription Plan.
If you select the Monthly Subscription Plan, you can switch to the Annual Subscription Plan at any time. If you select the Annual Subscription Plan, you may not change to the Monthly Subscription Plan until the end of the one-year term of your Annual Subscription Plan.
If you select a paid Service, you must provide us with current, complete, accurate and authorized payment method information (e.g. credit card information). You authorize us to charge your provided payment method for the Services you have selected and for any paid feature(s) that you choose. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) if you have elected a subscription service, on a recurring basis. To the extent Marketwake has not received your payment, in order to bring your account up to date, we may bill you simultaneously for both past due and current amounts. If you do not cancel your account, we may automatically renew your Service(s) and charge you for any renewal term. You understand that failure to pay any charges or fees may result in the suspension or cancellation of your Services.
You must pay all fees as specified on the service order form and subsequent invoices. If not specified otherwise, payment is due upon signature of the service order form and upon receipt of each invoice thereafter, payable via credit card, ACH, or other acceptable means. You are responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. If you believe in good faith that any invoice is incorrect and wish to dispute any invoice, you must notify us within 10 days of your receipt of the invoice. We reserve the right to charge interest of 1.5% per month on any undisputed invoice that is not paid within 30 days of the invoice date.
Marketwake reserves the right to suspend your access to any Marketwake Services if you fail to pay any undisputed invoice when due, until your account is paid in full or you have made other payment arrangements satisfactory to us. Our suspension of services will not affect your obligations to us under this Agreement. If any collection action is required to collect unpaid balances due, you shall reimburse Marketwake for collection costs, including but not limited to reasonable attorneys’ fees.
Our typical business practice is to not change service fees in your first year of service.
That is not to say that services fees don’t increase periodically. Typical increases relate to 1) new services added, 2) significant scope changes 3) growth (usually volume based), 4) price changes from our third party vendors, and 5) rate card changes or costs of service changes.
We are always happy to add services at our current published prices.
Unfortunately it is not uncommon to have scope changes based on facts and circumstances that we discover during onboarding or performing services.
When that happens our customer success team will work with you to understand the services you have purchased and walk through alternatives if additional services are needed. We do the best we can in our sales process, and at times you may select a self-service onboarding package based on assumptions of the state of your site or service, but at times, we discover additional issues, challenges or requirements to deliver. If this occurs we will talk with you and make sure everything makes sense if there is a miscommunication or a scope change.
We reserve the right to increase our prices related to growth and volume increases. We will notify you if you have a price increase related to growth or volume.
Unfortunately our third party vendors don’t consult with us before making pricing changes, so we reserve the right to increase fees related to pricing increases from the third party vendors that we use for our services. We typically try to pass on about a 10% discount to our Clients from third party software’s published prices. We will notify you at least 30 days in advance of any changes related to third party price changes.
Confidential Information means all non-public information disclosed by a party (“Discloser”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably
should be understood to be confidential given the nature of the information and the circumstances of disclosure. Marketwake’s Confidential Information includes without limitation the Marketwake Service, its operating policies and procedures, and its pricing information.
The Recipient will not disclose or use any Confidential Information of Discloser for any purpose outside of the scope of this Agreement, and must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
Confidential Information excludes information that: 1) is or becomes generally known to the public without breach of any obligation owed to Discloser, 2) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, 3) is received from a third party without breach of any obligation owed to Discloser, or 4) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order.
The workflow processes, procedures, user interface, designs, and other technologies provided as part of the Marketwake Service are proprietary property of Marketwake and its third party partners, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with Marketwake and our third party partners.
Client may not remove or modify any proprietary marking or restrictive legends in the Marketwake Service.
Any feedback or suggestions you provide us about the Marketwake Service is owned by Marketwake, and we may use such information without obligation or compensation to you. Marketwake reserves all rights unless expressly granted in this Agreement.
Term, Termination, Suspension
This Agreement continues until all service orders have expired, or if either party is in material breach of this Agreement. If either party is in material breach of this Agreement, the party harmed by the breach must provide notice in writing to the other party. If such breach is not cured within 30 days, the party may terminate the Agreement.
Within 30-days after termination, upon request, we will make the Marketwake Service available for Client to export Client Data and/or take over any third party licenses. After such 30-day period, Marketwake has no obligation to maintain the Client Data or third party licenses.
Marketwake may temporarily suspend or revoke the Marketwake Service at any time, if we in good faith believe that you violated a law, or that a conflict of interest exists that prevents us from providing the Marketwake Service in accordance with applicable ethical rules.
Marketwake may temporarily suspend or revoke the Marketwake Service at any time, if you fail to make payment as described above in the Payment of Fees section.
Any terms that by their nature must survive termination of this Agreement to enable a party to assert its rights and receive the protections of this Agreement, will survive (including without limitation, the confidentiality terms).
Let’s Be Nice
Other than as necessary to respond to any legal or regulatory process or proceeding or as may be required by law, either party shall not make, or cause or encourage others to make, any public or private statements (including on social media) that disparage, denigrate, criticize or malign the other party.
Our People are Our Most Precious Resource
You will not employ or otherwise contract for the same or similar services of any current employee, subcontractor, or agent (hereafter collectively referred to for this provision as “Personnel”) of Marketwake, performing duties in support of this Agreement, or Personnel hired by Marketwake, performing duties in support of this Agreement, during the term hereof until one year after the earlier of (1) the termination of such Personnel’s engagement or (2) the termination of this Agreement. No offer or other form of solicitation of employment will be made at any time when the employment of such Personnel is prohibited by this Agreement. Inasmuch as it is impossible to fix the damages for breach of this non solicitation provision, it is understood and agreed that upon breach, you will pay to Marketwake, as liquidated damages, an amount equal to thirty percent (30%) of the affected Personnel’s base annual compensation for each such employment solicitation made in breach of this provision. Both parties agree that this amount represents reasonable compensation to Marketwake, for its cost of recruiting and training its Personnel and does not constitute a penalty. Such amount will be due and payable by you within ten (10) days of receipt of written demand from Marketwake. In addition to the above-liquidated damages, Marketwake may seek equitable relief from you.
We Are Human
Marketwake represents and warrants that all professional services performed under this Agreement shall be performed in a workmanlike and professional manner. MARKETWAKE DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE MARKETWAKE TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE MARKETWAKE SERVICE, MARKETWAKE DOES NOT GUARANTEE THAT
THE MARKETWAKE SERVICE CANNOT BE COMPROMISED. CLIENT UNDERSTANDS THAT THE MARKETWAKE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
Reasonable Liability Limits
MARKETWAKE IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS OR IF THE DAMAGE OR LOSS IS FORESEEABLE.
EXCEPT FOR MARKETWAKE’S INDEMNITY OBLIGATIONS, MARKETWAKE’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CLIENT WITHIN THE 12 MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
Marketwake will defend or settle any third party claim against Client to the extent that such claim alleges that the Marketwake Service violates a copyright, patent, trademark, or other intellectual property right, if Client, promptly notifies Marketwake of the claim in writing, cooperates with Marketwake in the defense, and allows Marketwake to solely control the defense or settlement of the claim. Marketwake will pay infringement claim defense costs it incurs in defending Client, and Marketwake negotiated settlement amounts, and court awarded damages. If such a claim appears likely, then Marketwake may modify the Marketwake Service, or procure the necessary rights, or replace it with the functional equivalent, or terminate the functionality and refund any prepaid and unused fees. Marketwake has no obligation for any claim arising from: Marketwake’s compliance with Client’s specifications; a combination of the Marketwake Service with other technology or aspects where the infringement would not occur but for the combination; use of Client Data; or technology or aspects not provided by Marketwake. THIS PARAGRAPH CONTAINS CLIENT’S EXCLUSIVE REMEDIES AND MARKETWAKE’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
You hereby irrevocably agree to indemnify, defend, and hold Marketwake, its affiliates, directors, officers, employees, and agents harmless from and against any and all loss, costs, damages, liabilities, and expenses (including attorneys’ fees) arising out of or related to (i) any third party claim resulting from a breach by you of any of your covenants, representations, or warranties contained in this Agreement and/or (ii) your use of the Marketwake Service.
Governing Law and Venue
This Agreement is governed by the laws of the State of Georgia (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this Agreement. Any controversy, dispute or claim of whatever nature arising out of, in connection with, or in relation to the interpretation, performance or breach of this agreement, including any claim based on contract, tort, or statute, shall be resolved, at the request of any party to this agreement, by final and binding arbitration conducted at a location determined by the arbitrator in Atlanta, Georgia administered by and in accordance with the then existing rules and procedures of the American Arbitration Association, and judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof.
Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets of a party. Notwithstanding the foregoing, we may use subcontractors to perform services, in our sole discretion and without notice; provided that the use of any such subcontractors shall not affect our obligations or responsibilities to you.
You made it to the end, thanks for hanging with us. We really look forward to working with you