MediaBrush Terms and Conditions
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MediaBrush Marketing, LLC Terms and Conditions
Acceptance of Proposal by Client issued by MediaBrush Marketing (“MBM”), to which these terms and conditions are attached or by reference made a part of, shall constitute an agreement between Client and MBM with respect to the responsibilities of MBM and Client pursuant to the Acceptance of Proposal (collectively referred to as the “Agreement”). Client represents and warrants that: (1) it has the full authority to enter into the Agreement and to perform the acts or obligations required of it in the Agreement; (2) the execution of the Agreement and the performance of its obligations do not and will not violate any other agreement that it is a party to; (3) the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms. The formation, construction, performance and enforcement of the Agreement shall be in accordance with the laws of the State of Connecticut without regard to its conflict of law provisions.
Scope of Work
MBM shall provide only those professional services and/or products specified in the Agreement (the “Scope of Work”). Client understands and agrees that, unless listed in the Agreement, MBM is not responsible for any other work or scope of supply or any disclosure, notifications or reports that may be required to be made to third parties, including appropriate governmental authorities. If Client requests and MBM agrees to perform any services that are in addition to or outside the scope of Work identified in the Agreement, Client shall promptly pay MBM for such services in accordance with the terms and rates shown in the Agreement or, if no such terms or rates are shown in the Agreement, in accordance with MBM’s standard terms and rates for the services performed.
Client represents and warrants to MBM that: (1) it owns, or has acquired the express written authority to use all of the content Client gives to MBM, (“Client Content”); (2) Client Content does not contain any obscene, threatening, harassing, vulgar, defamatory, libelous, infringing or unlawful content; (3) Client Content does not infringe upon nor violate the rights of any third party, including copyrights and trademarks; (4) there are no claims against Client regarding Client Content; and (5) Client will at all times ensure that it is in compliance with the terms and conditions of any licensing contracts between Client and a third party.
Client’s Ownership and MBM’s Ownership
Once payment is received, MBM grants all rights to content produced for Client exclusively to Client, excluding third party components. Notwithstanding the foregoing, MBM retains the right to display graphics and other creative content elements as examples of MBM’s work. MBM shall own, and retain all intellectual property rights in all preexisting material, information, know-how and data created.
Access to Site and Information
Client will provide for right of entry and access to all relevant sites, equipment and other information in its control or possession as is necessary for MBM to timely and fully complete the Work. MBM is not responsible for the quality or accuracy of data or information, nor for the methods from which the data was developed, where such information or data is provided by or through Client or others that are not agents or MBM, and MBM has no obligation to investigate facts or conditions not disclosed to it by Client.
Upon signing the Acceptance of Proposal, the first invoice will be due upon receipt. All subsequent invoices will be due net 30. Client’s failure to pay on time constitutes a material breach of contract by Client permitting MBM to suspend its performance hereunder; additionally, MBM shall have all other remedies permitted to MBM by law, equity and these terms. MBM reserves the right to apply interest charges at 12% APR on any past-due invoice. Client will be responsible for all Client amounts owed to third party vendors and affiliates for work product completed on behalf of the client within the Scope of Work defined in the Agreement. Client will be responsible for all collections costs, including reasonable attorney’s fees, incurred by MBM as a result of any collection process or proceeding.
Notice of Cancellation and Notice of Alteration
MBM or Client may cancel or alter this Agreement by delivering written Notice of Cancellation or Alteration to the other party at least thirty (30) days prior to the requested cancellation/alteration date. Any notice (“Notice”) shall be deemed sufficient if emailed to an authorized representative, provided such notice confirms the date of receipt. Contracts automatically renew at the expiration of initial term, unless MBM is notified with an alteration or cancellation of terms in writing by the Client, or if specific renewal terms are determined prior to start of contract.
Except as expressly set forth herein, MBM’s services are provided “as is.” MBM expressly disclaims all warranties, express, implied or statutory, including but not limited to the implied warranties of merchantability or fitness for a particular purpose, and any warranties arising out of course of dealing, usage, or trade. MBM does not warrant that the services will meet client’s specific requirements or that the services will be completely error-free, completely secure or uninterrupted. MBM shall not be liable to client or any third party for any unavailability or inoperability of telecommunications systems, the internet, search engines, social media sites, technical malfunction, computer error, corruption or loss of information, or other injury, damage or disruption of any kind beyond the reasonable control of MBM. Client assumes all risks related to processing of transactions related to electronic commerce. Client’s sole remedy for a breach of the foregoing warranty is to require MBM to correct or replace, at MBM’s election, the affected service if client gives notice to MBM of such breach within 6 months from the date the affected services were provided.
Limitation of Liability
Except with respect to each party’s indemnity obligations hereunder, breach of a party’s confidentiality obligations and/or the gross negligence or willful misconduct of a party, in no event will MBM, it’s owners, officers, or employees be liable for any special, indirect, incidental or consequential damages (including without limitation, loss of use, data, business or profits or costs of cover) arising out of or in connection with the agreement, or professional errors or omissions, whether such liability arises from any claim based on agreement, tort (including negligence), product liability or otherwise, and whether or not client has been advised of the possibility of such loss or damage. MBM, it’s owners, officers, or employees’ cumulative liability to client, from all causes of action and all theories of liability, will be limited to and will not exceed the amounts paid to MBM by client pursuant to the previous three months of the agreement. MBM shall not be liable to client or client’s representatives for any harm resulting from any use of confidential information.
Client agrees to defend, indemnify and hold harmless MBM from and against any and all claims, liabilities, suits, actions, proceedings, demands, damages, losses, costs, and expenses, including reasonable attorney’s fees, based upon a third-party claim arising, directly or indirectly, out of the Client Content.
How Disputes will be Resolved/Legal Issues
MediaBrush Marketing’s home is in New York. Therefore, the formation, construction, performance and enforcement of the Agreement shall be in accordance with the laws of the State of New York without regard to its conflict of law provisions. Any action or proceeding arising from a claimed breach of this Agreement shall only be brought in the appropriate state or federal court in the State of New York and Client consents to the jurisdiction of such New York courts (and appellate courts) and by agreeing waives the right to object to New York venues or jurisdiction. Client also consents to in personam jurisdiction (personal jurisdiction) and agrees that service by registered mail, return receipt requested, is sufficient. If MBM prevails in any dispute arising out of this Agreement, MBM will be entitled to reimbursement for its expenses and costs (including attorneys’ fees), regardless of whether any legal action is filed. Any action or proceeding arising out of this Agreement must be instituted within two (2) years after such cause of action has accrued. Client acknowledges that if the remedy at law for any breach, or threatened breach, of this Agreement is by its nature inadequate to compensate MBM for the damages that are certain to result then MBM may seek temporary and/or permanent injunctive relief, and any other available equitable relief and/or damages, without any requirement to obtain a bond or prove monetary damages.
Neither party shall be liable for any default or delay in the performance of its obligations under this Agreement to the extent such default or delay is caused, directly or indirectly, by reason of fire, earthquake, labor dispute (other than labor disputes of such party or its independent contractors and its employees), act of God, acts of terrorism, or any local, state, federal, national or international law, governmental order or regulation or any other event beyond a party’s reasonable control.
Each provision of the Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision is held invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision. Indemnification, Client’s Ownership and MBM’s Ownership and shall survive termination or cancellation of the Agreement.
For questions regarding our Standard Terms and Conditions, please email us at email@example.com.