Terms and Conditions
LAST UPDATED March 9, 2025
MARKETING AGENCY TERMS AND CONDITIONS
LAST UPDATED: March 9, 2025
INTRODUCTION
These Terms and Conditions ("Agreement") govern the relationship between Monorail Marketing ("Agency," "we," "us," or "our") and the client ("Client," "you," or "your") engaging our marketing services. This document contains important information about your rights and obligations, as well as limitations that may apply. By engaging our services, you acknowledge that you have read, understood, and agree to be bound by this Agreement.
1. DEFINITIONS
1.1 "Agency" means Monorail Marketing, its employees, representatives, contractors, and affiliates.
1.2 "Client" means the individual or entity engaging the Agency's services, including the Client's employees and authorized representatives.
1.3 "Services" means the marketing, advertising, design, consulting, and other professional services provided by the Agency to the Client as specified in the applicable Statement of Work.
1.4 "Deliverables" means all materials, content, designs, plans, strategies, reports, and work product created by the Agency for the Client as outlined in the Statement of Work.
1.5 "Statement of Work" or "SOW" means a written document detailing the specific services, deliverables, timeline, and fees agreed upon by the Agency and Client.
1.6 "Client Content" means any information, data, materials, logos, trademarks, or other content provided by the Client to the Agency for use in performing the Services.
1.7 "Intellectual Property" means all patents, trademarks, service marks, trade names, domain names, business names, copyrights, design rights, database rights, trade secrets, know-how, and other intellectual property rights (whether registered or unregistered) and applications for any of the foregoing, anywhere in the world.
2. SERVICES
2.1
Scope of Services
. The Agency will provide the Services described in each Statement of Work executed by both parties. Each SOW will become part of this Agreement.
2.2
Changes to Services
. Any changes to the Services must be mutually agreed upon in writing. Changes may affect timeline, costs, and deliverables.
2.3
Timeline
. The Agency will make reasonable efforts to meet agreed-upon deadlines. However, timelines may be adjusted based on Client responsiveness, change requests, or other factors outside the Agency's reasonable control.
2.4
Client Responsibilities
. Client agrees to:
(a) Provide timely access to necessary information, materials, and approvals;
(b) Designate a primary contact person with authority to make decisions;
(c) Review and provide feedback on Deliverables within agreed timeframes;
(d) Ensure all Client Content is accurate and legally compliant; and
(e) Comply with all applicable laws and regulations.
3. FEES AND PAYMENT
3.1
Fees
. The Client shall pay the Agency the fees specified in the applicable Statement of Work.
3.2
Expenses
. Unless otherwise specified in the SOW, the Client shall reimburse the Agency for all reasonable expenses incurred in providing the Services, including but not limited to travel, accommodations, advertising placements, software subscriptions, and third-party services.
3.3
Payment Terms
. Invoices are due within 30 days of receipt unless otherwise specified in the SOW. Late payments will incur interest at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less.
3.4
Taxes
. All fees are exclusive of applicable taxes. The Client is responsible for all sales, use, and value-added taxes associated with the Services, excluding taxes based on the Agency's income.
3.5
Project Delays
. If a project is delayed by more than 30 days due to Client's failure to provide required materials, approvals, or responses, the Agency reserves the right to invoice for completed work to date.
4. TERM AND TERMINATION
4.1
Term
. This Agreement will commence on the date it is executed and will continue until all Services under the SOW have been completed, or until terminated as provided herein.
4.2
Termination for Convenience
. Either party may terminate this Agreement upon 30 days' written notice to the other party.
4.3
Termination for Cause
. Either party may terminate this Agreement immediately upon written notice if the other party:
(a) Breaches a material term of this Agreement and fails to cure such breach within 15 days of receiving notice;
(b) Becomes insolvent, files for bankruptcy, or makes an assignment for the benefit of creditors.
4.4
Effect of Termination
. Upon termination:
(a) The Client shall pay for all Services performed up to the date of termination;
(b) The Client shall pay for any non-cancellable expenses incurred by the Agency;
(c) The Agency shall return or destroy all Client Confidential Information upon request; and
(d) All licenses granted to Client for Deliverables shall continue in accordance with Section 5, provided all fees have been paid.
5. INTELLECTUAL PROPERTY
5.1
Client Content
. The Client retains all rights to Client Content. The Client grants the Agency a non-exclusive, worldwide license to use, reproduce, and modify Client Content solely for the purpose of providing the Services.
5.2
Agency Materials
. The Agency retains all rights to pre-existing materials, tools, systems, processes, and knowledge used in providing the Services.
5.3
Deliverables
. Upon full payment of all fees due under this Agreement:
(a) The Agency assigns to the Client all rights to custom Deliverables created specifically for the Client;
(b) For Deliverables incorporating Agency Materials, the Agency grants the Client a non-exclusive, perpetual license to use such Deliverables for the Client's business purposes;
(c) The Agency retains the right to use Deliverables in its portfolio and for promotional purposes.
5.4
Third-Party Materials
. If any Deliverables contain third-party materials (stock photos, fonts, software, etc.), the Client's use of such materials is subject to the applicable third-party license terms.
5.5
Client Warranty
. The Client warrants that Client Content does not infringe any third-party rights and that the Client has all necessary rights and permissions to use and allow the Agency to use Client Content.
6. CONFIDENTIALITY
6.1
Confidential Information
. "Confidential Information" means any non-public business, technical, or financial information disclosed by one party to the other, whether in writing, orally, or by any other means.
6.2
Protection
. Each party agrees to:
(a) Maintain the confidentiality of the other party's Confidential Information;
(b) Use Confidential Information solely for purposes of performing under this Agreement; and
(c) Use at least reasonable care to protect Confidential Information.
6.3
Exclusions
. Confidential Information does not include information that:
(a) Is or becomes publicly available through no fault of the receiving party;
(b) Was known to the receiving party prior to disclosure;
(c) Was independently developed by the receiving party without use of Confidential Information; or
(d) Was lawfully received from a third party without restriction.
6.4
Required Disclosure
. If required by law, a party may disclose Confidential Information, but must provide prompt notice to the other party when possible.
6.5
Term of Confidentiality
. The obligations in this section survive termination of this Agreement for a period of three years.
7. REPRESENTATIONS AND WARRANTIES
7.1
Agency Warranties
. The Agency warrants that:
(a) It has the right to enter into this Agreement;
(b) The Services will be performed in a professional manner consistent with industry standards; and
(c) To the best of its knowledge, Deliverables will not infringe the intellectual property rights of any third party.
7.2
Client Warranties
. The Client warrants that:
(a) It has the right to enter into this Agreement;
(b) It has all necessary rights to Client Content; and
(c) Client Content does not violate any applicable laws or infringe any third-party rights.
7.3
Disclaimer
. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE AGENCY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE AGENCY DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL MEET CLIENT'S REQUIREMENTS OR THAT THEY WILL BE ERROR-FREE.
8. LIMITATION OF LIABILITY
8.1
Exclusion of Damages
. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF DATA, OR LOSS OF BUSINESS OPPORTUNITY) ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2
Limitation of Liability
. EACH PARTY'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO THE AGENCY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
8.3
Exceptions
. The limitations in this section do not apply to:
(a) Either party's indemnification obligations;
(b) Either party's breach of confidentiality obligations;
(c) Client's payment obligations; or
(d) Liability that cannot be limited by law.
9. INDEMNIFICATION
9.1
Agency Indemnification
. The Agency will defend, indemnify, and hold harmless the Client from and against any third-party claims arising from the Agency's gross negligence or willful misconduct.
9.2
Client Indemnification
. The Client will defend, indemnify, and hold harmless the Agency from and against any third-party claims arising from:
(a) Client's use of the Deliverables;
(b) Client Content;
(c) Client's breach of this Agreement; or
(d) Client's violation of applicable laws or regulations.
9.3
Indemnification Process
. The indemnified party will: (a) promptly notify the indemnifying party of any claim; (b) give the indemnifying party sole control over the defense and settlement of the claim; and (c) provide reasonable assistance to the indemnifying party at the indemnifying party's expense.
10. GENERAL MARKETING PRACTICES
10.1
Compliance with Laws
. All marketing activities conducted by the Agency on behalf of the Client will comply with applicable laws and regulations, including but not limited to:
(a) Truth in advertising laws;
(b) Data protection and privacy laws;
(c) Copyright and intellectual property laws;
(d) Email marketing and anti-spam regulations; and
(e) Social media platform terms of service.
10.2
No Guarantees
. While the Agency will use commercially reasonable efforts to achieve Client's marketing objectives, the Agency cannot and does not guarantee specific results, including but not limited to website traffic, lead generation, sales, or revenue.
10.3
Performance Data
. The Agency will provide regular reports on marketing performance. The Client acknowledges that marketing metrics may be affected by numerous factors outside the Agency's control, including market conditions, competitor actions, and algorithm changes by search engines or social media platforms.
11. DIGITAL SERVICES SPECIFIC TERMS
11.1
Website Development
. For website development services:
(a) Client is responsible for obtaining and maintaining appropriate hosting and domain services;
(b) Agency is not responsible for website performance issues caused by Client's hosting provider;
(c) Client is responsible for ongoing maintenance and security updates unless otherwise specified in the SOW.
11.2
Search Engine Optimization
. For SEO services:
(a) Agency cannot guarantee specific rankings or results due to frequent changes in search engine algorithms;
(b) Agency is not responsible for negative consequences resulting from search engine algorithm updates;
(c) SEO results typically require 3-6 months to materialize.
11.3
Digital Advertising
. For paid advertising services:
(a) Client must approve advertising budgets in advance;
(b) Agency is not responsible for changes made to campaigns by Client or third parties;
(c) Client acknowledges that ad performance may vary based on market conditions, competition, and platform algorithm changes.
11.4
Social Media Management
. For social media services:
(a) Client must provide timely approval of content calendars;
(b) Agency is not responsible for negative engagement or comments on social platforms;
(c) Client acknowledges that social media platforms may change their features, algorithms, or terms of service without notice.
12. GENERAL PROVISIONS
12.1
Independent Contractor
. The Agency is an independent contractor. Nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
12.2
Non-Solicitation
. During the term of this Agreement and for one year thereafter, Client agrees not to directly or indirectly solicit or hire any employee or contractor of the Agency without the Agency's prior written consent.
12.3
Force Majeure
. Neither party will be liable for any failure or delay in performance due to circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.
12.4
Assignment
. Neither party may assign this Agreement without the prior written consent of the other party, which will not be unreasonably withheld. However, either party may assign this Agreement to a successor in interest in the event of a merger, acquisition, or sale of all or substantially all of its assets.
12.5
Notices
. All notices must be in writing and delivered by email with confirmation of receipt, personal delivery, or courier to the addresses specified in the SOW.
12.6
No Waiver
. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.7
Severability
. If any provision of this Agreement is found to be unenforceable, the remaining provisions will remain in full force and effect.
12.8
Entire Agreement
. This Agreement, together with any SOWs, constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements, proposals, or representations, written or oral.
12.9
Amendment
. This Agreement may only be modified by a written amendment signed by both parties.
12.10
Governing Law
. This Agreement will be governed by and construed in accordance with the laws of [YOUR STATE/JURISDICTION], without regard to its conflict of laws principles.
12.11
Dispute Resolution
. Any dispute arising from this Agreement shall first be addressed through good faith negotiation. If the dispute cannot be resolved through negotiation, it shall be submitted to mediation before recourse to litigation.
12.12
Survival
. Sections that by their nature are intended to survive termination of this Agreement will survive termination.
By engaging our services, you acknowledge that you have read, understood, and agree to these Terms and Conditions.
