Engagement: Client, by its execution hereof, engages BodyShop Marketing LLC as an independent consultant to perform the services outlined in the proposal on the pages preceding these Terms and Conditions of Service (“Terms and Conditions”). These Terms and Conditions, together with the terms and provisions contained on the following pages of the Terms and Conditions, are hereinafter referred to collectively as the “Agreement.”
Term: This Agreement shall become effective on the date accepted by BodyShop Marketing LLC on the pages preceding this Agreement and continue on the agreed-upon basis thereafter. We do require a 30 Day Notice of Cancellation of Services. This Agreement may be terminated immediately by BodyShop Marketing LLC if (i) Client fails to pay any fees as and when due hereunder, or (ii) Client ceases to cooperate with BodyShop Marketing LLC or otherwise makes it difficult for BodyShop Marketing LLC to perform the services contracted hereunder, or (iii) BodyShop Marketing LLC discovers that Client is utilizing its website for any purpose that violates federal, state or local law.
Fees and Payments: During the Term, Client agrees to pay in full when due the monthly fees for the service selected by Client on the preceding pages of this Agreement. The first monthly fee shall be due upon acceptance of this Agreement by BodyShop MarketingLLC. All subsequent monthly fees under this Agreement shall be due on the same calendar day of each successive month (i.e., if the Agreement is accepted on May 10, subsequent monthly fee payments shall be due on June 10, July 10, etc.). Client acknowledges and agrees that any fee not paid within (30) days (1 Month) after its due date, all services with BodyShop Marketing LLC shall be terminated immediately. Once paid, all fees shall be nonrefundable. BodyShop Marketing LLC reserves the right, at any time and from time to time, to increase the monthly and other fees charged by BodyShop Marketing LLC for the services provided hereunder upon forty-five (45) days prior notice to Client. If any chargeback is filed on the money paid in this agreement by the Client to BodyShop Marketing LLC, the Client will immediately be in breach of this contract and will be held liable for damages to BodyShop Marketing LLC equal to the full amount charged back plus any merchant processor fee’s assessed.
General Changes: Unless otherwise provided in the Proposal, the client is allowed two design changes to the initial design. Client shall pay additional charges for changes in excess of the two design requests or after sign-off of design, at BodyShop Marketing LLC’s standard hourly rate of $100.00 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. If Client requests or instructs Changes that amount to a revision in or near excess of 50 percent ( 50%) of the time required to produce the Deliverables, and or the value or scope of the Services, BodyShop Marketing LLC shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by BodyShop Marketing LLC.
Timing: BodyShop Marketing LLC will prioritize the performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to BodyShop Marketing LLC. BodyShop Marketing LLC shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that BodyShop Marketing LLC’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or BodyShop Marketing LLC’s obligations under this Agreement.
Client Authorization: Client authorizes BodyShop MarketingLLC to (i) access without limitation Client’s website to analyze its content and structure; (ii) to alter Client’s website as necessary or desirable in BodyShop Marketing LLC’s sole and absolute discretion for purposes of search engine optimization, and for any other purpose agreed to by Client and BodyShop Marketing LLC; (iii) upload such pages and content to the Client’s website as BodyShop Marketing LLC deems appropriate in its sole and absolute discretion for purposes of search engine optimization; (iv) make use of all of Client’s logos, trademarks, copyrights, website images and similar items to create informational pages and for other uses deemed necessary by BodyShop Marketing LLC to provide the services subscribed for hereunder; and (v) communicate with third parties as BodyShop Marketing LLC deems necessary in its sole discretion to perform BodyShop Marketing LLC’s services hereunder, including but not limited to Client’s web designer.
Client Consent to Installation of Telephone Tracking Number: The Client consents to the placement of a telephone tracking number on the Client’s website, Google Business Profile, and on off-site videos and further consents to the recording of all telephone calls that are routed through the telephone tracking number. The Client understands that the telephone tracking number will remain on the Client’s website and embedded in the Client’s off-site videos during the Term. Within a reasonable time after the termination of this Agreement, the telephone tracking number will be removed from Client’s website but will remain on Client’s off-site videos. The Client may request that the Client’s off-site videos be removed by BodyShop Marketing LLC but understands that BodyShop Marketing LLC will not separately remove the embedded tracking number from the Client’s off-site videos, even upon termination of this Agreement. At the termination of this Agreement, and provided that Client has paid in full all of the fees due hereunder, including any interest due on the fees payable hereunder, BodyShop Marketing LLC will port the telephone tracking number to Client at no cost to BodyShop Marketing LLC.
Pay-Per-Click & Geofencing Services: The Client consents to BodyShop Marketing LLC using reasonable efforts needed in order to improve the campaign based on fluctuating market and competitor trends. Cost Per Lead may fluctuate due to monthly trends and can not be guaranteed by any member of the BodyShop Marketing LLC team. The Client will be allowed access to View campaign strategy, keywords, ads and landing pages through a monitored screen-sharing session with a member of the BodyShop Marketing LLC team, but they will not be given access to view the campaign on their own in order to avoid potential strategy sharing with BodyShop Marketing LLC agency competitors. The Client understands that all PPC Campaigns are the intellectual property of BodyShop Marketing LLC and Clients will not be given access in order to view the strategy put into place before or after termination. Client consents that they will be responsible for all payments and expenses to any Advertising Channels used and will take responsibility for all balances upon termination. The Client understands that all Ad accounts, marketing materials and graphics used on Advertising Channels are property of BodyShop Marketing LLC even upon termination of services.
Email Marketing Services: If a client has agreed to an Email Marketing Package, the Client consents to provide an updated Customer Email List to our team on a monthly basis in order to ensure that their monthly specials are being sent to their most recent customers. If the Client does not provide the team with a Monthly Special prior to the deadline, their monthly email will be sent to the most updated list our team has.
Social Media Marketing: If a client has agreed to a Social Media Package, the Client consents to provide our team with updated account logins in order for our team to post effectively and in a timely manner. The Client consents to understand that a Social Media Package with us does not guarantee inbound leads as Social Media is used as a brand awareness tool. Should lead generation be the goal, a Social Media Ads package may make more sense. Inquire about this if necessary.
Termination of Services: Upon termination of this agreement, whether the reasoning was due to non-payment or the Client’s choice to end the contract, the Client shall have thirty (30) days from the effective date of termination to move its website to another website host. If Client has not, by the end of such thirty (30) day period, moved its website to a new website host, BodyShop Marketing LLC shall have the authority and right, without notice to or the consent of Client, to remove Client’s website from BodyShop Marketing LLC server, with no liability to BodyShop Marketing LLC for such removal. In the event that the Client terminates any SEO program before the completion of the term, the Client remains responsible for paying the balance of the remaining program fees. Any outstanding payments shall be made within thirty (30) days of termination. If at some point in the future, our agreement ends and the client wants to move in a different direction they have 3 options for transitioning their site:Clients can pay BodyShop Marketing LLC per month to continue hosting on the BodyShop Marketing LLC server.Clients can contract with another agency to implement their website with a hosting provider of their choice.If a Client has an IT provider that understands how to transition the website, we will provide a complete backup that they can use at no additional charge.
Hosting & Email Management: The Client understands that BodyShop Marketing LLC will host their website on our server but not their email. If a client requires a solution to manage and maintain email accounts (email@domain.com) then they can set that up with their IT provider or BodyShop Marketing LLC will recommend a provider to configure their email account(s) for them at an additional fee paid to that provider directly.
Ownership: In the event of termination, the Parties agree that the website, graphics & and content developed by BodyShop Marketing LLC on behalf of the client as a function of this agreement will be released to the client at no additional charge once they have been onboard and paid for at least 12 (twelve) months of service. Alternatively, the Client can pay upfront for the website development cost. Alternatively, the Client can buy out the website prior to 12 months of payments with a one-time agreed-upon payment. After that time the Client may request an electronic copy of the Website Files & Database to be implemented and installed by a 3rd party on a new host (Unless a maintenance/hosting agreement with BodyShop Marketing LLC is acquired by the client). Modifications by the Client or their 3rd party may be required for the website to function adequately depending on the new host. This third-party shall thereafter be solely responsible, and Client shall not hold BodyShop Marketing LLC liable, for any aspect of the Website including, but not limited to: WordPress updates and forward compatibility, Licensed plugins and add-ons, redirects, form settings, hosting Website on a non-BodyShop Marketing LLC server, and implementing a satisfactory transition of the Website.
Client Acknowledgments: Client makes the following acknowledgments: (i) that BodyShop Marketing LLC cannot control or exert influence over the policies or operations of any search engine companies or any other third parties regarding the content of the sites that are accepted by the search engine companies or other third parties; (ii) that BodyShop Marketing LLC will not be responsible for any changes or alterations to the Client’s website made by the Client or any third parties that negatively impacts the rankings or visibility of the Client’s website; (iii) that because the results of the services to be provided by BodyShop Marketing LLC hereunder depend upon a number of factors outside of BodyShop Marketing LLC’s control, BodyShop Marketing LLC cannot guarantee the results of its services to Client; (iv) that because the utilization of certain keywords and key phrases are very competitive, and because search engines are constantly changing search engine ranking algorithms, BodyShop Marketing LLC cannot guarantee that Client’s website will achieve the highest search result position in any search engine or consistent search result positions in the top rankings; (v) that certain search engine companies may affect the rankings of new and/or unproven companies (for example, “sandboxing”); (vi) that search engines will, from time to time, drop listings without specific causes; and (vii) that while BodyShop Marketing LLC shall use commercially reasonable diligence to promptly submit and/or effect a change in rankings of Client’s website, some search engines may take several months or longer to list and/or effect a change in rankings.
Client Representations and Warranties; Indemnity: Client represents and warrants to BodyShop Marketing LLC the following: (i) that the Client owns their business URL; and (ii) that Client owns or has the absolute and unrestricted right to use and to grant to BodyShop Marketing LLC the right to use all graphics, photos, designs, intellectual property and artwork, and any element or elements thereof, that Client furnishes to BodyShop Marketing LLC. Client indemnifies and holds harmless BodyShop Marketing LLC and BodyShop Marketing LLC’s owners, officers, directors and employees from and against any and all liabilities, costs and expenses (including but not limited to reasonable attorneys’ fees and costs incurred at trial, appeal or other legal proceeding) arising out of or with respect to any breach by the Client of any of the foregoing representations and warranties, or the breach of any representations and warranties contained elsewhere in this Agreement, and/or the failure by the Client to comply with any covenant of the Client contained in this Agreement. If the Client is a company, the individual signing this Agreement represents and warrants that the execution of this Agreement has been authorized by all necessary action of the Client, and that the undersigned has full authority to sign on behalf of and bind the Client hereunder.
Governing Law/Arbitration: This Agreement shall be governed by and under the laws of the State of Oklahoma without regard to conflict of laws principles. Any controversy or claim arising out of or under, or relating to, this Agreement, including but not limited to the authority to sign this Agreement, contract formation issues, fraud or the breach of any provision hereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, in any arbitration hereunder, the arbitrator shall have no authority to award any relief outside the scope of all disclaimers stated in this Agreement. All arbitration proceedings brought hereunder shall be located exclusively in Ottawa County, Oklahoma.
Miscellaneous: This Agreement may not be assigned by the Client without the prior written consent of BodyShop Marketing LLC which may be withheld or denied by BodyShop Marketing LLC in its sole and absolute discretion. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto. The prevailing party in any suit, action or proceeding (including, but not limited to, an arbitration proceeding) arising out of or in connection with this Agreement, shall be entitled to an award of reasonable attorneys’ fees, costs and disbursements incurred by it in connection therewith. Any failure by BodyShop Marketing LLC to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. All previous communications about the subject matter of this agreement, either oral or written, are hereby abrogated and withdrawn, and this agreement constitutes the entire agreement between Client and BodyShop Marketing LLC with regard to the subject matter hereof. No terms, conditions, understandings, or agreements purporting to modify or vary the terms of this document shall be binding unless hereafter made in writing and signed by both the Client and BodyShop Marketing LLC. There are no third-party beneficiaries of or to this Agreement or any of the provisions hereunder. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument. Any signature to this Agreement that is transmitted by fax, email, or internet transmission shall be considered an original signature for all purposes. It is the intent of the parties hereto that all provisions of this Agreement shall be enforced to the fullest extent possible. Accordingly, if any arbitrator determines that the scope and/or operation of any provision of this Agreement are too broad to be enforced as written, the parties hereto intend that the arbitrator should reform such provision to the minimum extent necessary to render such provision enforceable. If, however, any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future law, and not subject to reformation, then such provision shall be fully severable, and this Agreement shall be construed and enforced as if such provision was never a part of this Agreement. The rule of construction that an ambiguity in a contract will be construed against the drafter is hereby waived by both parties hereto.
Force Majeure: BodyShop Marketing LLC shall not be liable for, nor considered to be in breach under this Agreement due to, delay or failure to perform under this Agreement as a consequence of any conditions that are beyond BodyShop Marketing LLC’s reasonable control after exercising commercially reasonable efforts.