Terms & Conditions

TERMS OF SERVICE

Last Updated November 7, 2023

These Terms of Service (“Terms of Service”) constitute the terms and conditions that govern the relationships between XTRACT Media, LLC (“Agency” or “we”) and its customers (each a “Customer” or “you”) who agree to receive professional digital marketing services (the “Services”) from XTRACT Media.  These Terms of Service are expressly incorporated by reference into each Proposal for Services entered into between XTRACT Media and a Customer. By signing a Proposal or otherwise receiving any Services from XTRACT Media, Customer agrees to be bound by these Terms of Service.  

ENGAGEMENT OF SERVICES

Customer and Agency desire to have the Agency render certain marketing & advertising services as have been agreed upon in the Proposal entered into by and between Agency and Customer (the “Specifications”). 

MUTUAL COOPERATION

We agree to use our best efforts to fulfill and exceed your expectation on the deliverables agreed upon in the Proposal. You agree to aid us in doing so by making available to us needed information pertaining to your website and to cooperate with us in expediting the work.

Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.

CONFIDENTIALITY

Customer and Agency acknowledge and agree that the Specifications and all other documents and information related to the Services (the “Confidential Information”) will constitute valuable trade secrets of both parties. Agency's knowledge and know-how, concerning the operations, products, services, procedures and customers of Agency, in any format whatsoever, including, without limitation, the techniques, formulations, organization, design, implementation, preparation, and other operations, methods, accumulated experiences, information related to marketing techniques, advertising, policies, procedures, promotions, customer lists, sales records, concepts, ideas, research, other proprietary information, and any materials which Agency designates as confidential, shall also be included in the meaning of “Confidential Information” for purposes of these Terms of Service. Both parties shall keep the Confidential Information in confidence and shall not, at any time during or after the term of the parties’ relationship, and for a period of three (3) years thereafter, without the other party's prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information. Excluded from the “Confidential Information” definition is anything that can be seen by the public in any advertising medium or channel prior to the engagement of Agency to provide services, or information which was provided to Agency by Customer for publication as a requirement of the fulfillment of the Specifications.

Customer understands and agrees that any disclosure or misappropriation of any of Agency's Confidential Information, at any time, in violation of this Agreement, will cause Agency irreparable harm. Since monetary damages will not be sufficient to compensate for the unauthorized use or disclosure of Agency's Confidential Information, injunctive or other equitable relief would be appropriate to prevent any actual or threatened use or disclosure of Agency's Confidential Information; and you, therefore, consent to the entry of an injunction, without the need to post a bond, prohibiting any conduct by you in violation of this provision.

PROOFS

Proofs will be presented for Customer approval at each stage of development. If revisions are required, a request must be made when proofs are returned to the Agency. Agency will make two rounds of edits, based upon Customer's feedback, which will constitute acceptable delivery unless otherwise agreed upon in writing by both Agency and Customer. The total number of Proofs provided to Customer shall number two unless otherwise determined in the “Specifications.” Additional Proofs can be provided for a fee.

SERVICES COMPLETION

Agency will use reasonable diligence in the development of the Services and endeavor to deliver to Customer all agreed-upon deliverables (or “Milestones”) outlined in the Proposal. Customer acknowledges, however, that the delivery deadline noted in this Proposal is an estimate and not a required delivery date.

Customers will have 10 days from the first draft submission to return edits, review and approve each portion of the project. At the end of 10 days, the project will be considered acceptably delivered and the Customer will be invoiced for the remaining balance of the project.

TERMS OF PAYMENT

BILLING SCHEDULE

We’re sure you understand how important it is as a small business that you pay the invoices that we send you promptly. We’re also sure you’ll want to maintain a positive working relationship and keep the project moving forward, so you agree to timely pay all fees contemplated in the Proposal. Our billing schedule is every 4 weeks and we will charge your payment method automatically unless otherwise agreed upon. 

OUT-OF-POCKET EXPENSES

Customer agrees to the pay for all reasonable out-of-pocket expenses approved by Customer and incurred by Agency in providing the Services including, but without limitation, any:

• Color printing

• Copywriting

• Proofs

• Courier services

• SSL Certificates

• Web and Email Hosting

• Stock Photography

• Third-Party Tools, Plugins and Software

• Anything that requires an additional fee beyond the scope of this Agreement

CLIENT AGREEMENT TO PAY

Customer agrees to pay for the Agency’s fees and all expenses, as set forth above, within seven days of receipt of an invoice from the Agency. Any invoice not timely paid within seven days of receipt will be subject to a one-time late payment fee equal to three percent (3%) of the invoice balance. Additionally, any fees or expenses remaining unpaid more than thirty days from the invoice date will accrue interest at the rate of five percent (5%) per month (with a minimum monthly interest charge of $150) until paid in full. Agency puts a great deal of time and resources into the Services. To ensure Agency and Customer are committed to the agreed upon terms, all Services purchased by Customer are non-refundable and all sales are final.

Customer agrees that any changes Customer makes to the specification may adversely affect the original estimate. Extra time incurred above and beyond the original specification will be billed separately. Customer will be notified of any changes to the specification and the related extra costs, which Customer will agree to in writing before the additional work starts.

COLLECTION COSTS

In the event that we incur legal fees, costs and disbursements in an effort to collect our invoices, in addition to interest on the unpaid balance, you agree to reimburse us for these expenses.

In the event a customer fails to timely pay any outstanding invoice, the Agency has the right to discontinue the Services and withhold delivery of any work product until all invoices are paid in full. Agency may also, in its sole discretion, formally terminate its relationship with Customer. 

CANCELLATION OF PLANS

Following the Initial Term, you have the right to modify, reject, cancel or stop any and all plans or work in process with 30 day minimum notices. However, you agree to reimburse us for all costs and expenses we incurred prior to your change in instructions, and which relate to non-cancelable commitments, and to defend, indemnify and hold us harmless for any liability relating to such action. We agree to use our best efforts to minimize such costs and expenses. Due to the time and effort required during the intake portion of the Services, once the Proposal is executed, the setup fee is non-refundable. Also, any additional payments are non-refundable, in the event that the Customer fails to attend any follow-up meetings, provide feedback or take advantage of any consulting sessions.

PAYMENT FOR NON-CANCELABLE MATERIALS

Any non-cancelable materials, services, etc., we have properly committed ourselves to purchase for your account, (either specifically or as part of a plan such as modules, photography and/or external services) shall be paid for by you, in accordance with the provisions of these Terms of Service. We agree to use our best efforts to minimize such liabilities immediately upon written notification from you. We will provide written proof, upon request, that any such materials and services are non-cancelable.

MATERIALS UNPAID FOR

If upon termination there exist any materials furnished by us or any Services performed by us for which you have not paid us in full, you will pay any outstanding balance in full immediately upon termination.

TRANSFER OF MATERIALS

Upon termination of the parties’ relationship, provided that there is no outstanding indebtedness then owing by Customer to Agency, Agency shall transfer, assign and make available to Customer all property and materials in its possession or control belonging to Customer. Customer agrees to pay for all costs associated with the transfer of materials.

RESPONSIBILITIES OF AGENCY AND CUSTOMER

AGENCY'S RESPONSIBILITY FOR RELEASES

We shall obtain releases, licenses, permits or other authorization to use testimonials, copyrighted materials, photographs, artwork or any other property or rights belonging to third parties obtained by us for use in performing the Services for you (if applicable, additional license fees apply).

CUSTOMER'S RESPONSIBILITY FOR RELEASES

You warrant and represent that all elements of text, images, or other artwork you provide are either owned by you or that you have permission to use them. You agree to at all times defend, indemnify and hold harmless Agency, its affiliates, successors, transferees, assignees, licensees, parent companies, subsidiary companies, agents, associates, officers, directors, shareholders and employees from and against any and all claims, causes of action, damages, liabilities, costs and expenses, including legal fees and expenses, arising out of or related to a breach by you of the foregoing warranty and representation.

ADDITIONAL SERVICES

Any revisions, additions or redesign Customer wishes Agency to perform which is not specified in the Proposal shall be considered “additional” and will require a separate written addendum and payment. Agency shall advise Customer on any requested work that falls outside of the Proposal.

REDUCTION IN SCOPE OF SERVICES

Any material reduction or decrease in the scope of the Specifications or the Services shall also require the mutual written agreement of the parties.  Moreover, even if a reduction in scope is agreed upon by the Agency, the reduction shall not be implemented/effective for at least thirty (30) days from the parties’ written agreement.  

USE OF SERVICES AND CREATIVE CONTENT BY THE PARTIES

Customer grants Agency the right to use the creative content, description of services performed, results of services and campaign data as it sees fit for promotional purposes. Agency grants Customer the right to use the creative content, results of services and campaign data as it sees fit for its business purposes and does not restrict the Customer from using the creative content, results of services and campaign data with service providers other than Agency. 

OWNERSHIP OF INTELLECTUAL PROPERTY

Any intellectual property created in furtherance of the relationship between the parties, whether as the result of the work of one party or the joint efforts of the parties, shall be the sole intellectual property of Agency, who shall have the sole right to maintain or obtain copyright, patent or trade secret protection for such developments. 

For any and all intellectual property that the Agency recommends that Customer publish under its own name, Customer shall be deemed to have been granted a fully-paid license to use, publish and create derivative works based on that property.  

INDEPENDENT CONTRACTOR RELATIONSHIP

Neither the Proposal nor these Terms of Service create a fiduciary relationship between the Agency and Customer. Agency's relationship with Customer is that of an independent contractor, and nothing in the Proposal or these Terms of Service is intended to, nor shall be construed to, create a partnership, agency, joint venture, employment or similar relationship.

NO RIGHT TO ASSIGN

The Customer has no right to assign, sell, modify or otherwise alter the Proposal, except upon the express written advance approval of the Agency.

NO RESPONSIBILITY FOR THEFT OR THIRD PARTY INFRINGEMENT

Agency has no responsibility for any third-party taking all or any part of the content, ideas, or services provided to Customer by Agency. Agency has no responsibility for any third-party taking all or any part of the content, ideas, or services provided to Customer by Agency.

NON-SOLICITATION

During the term of the parties’ relationship and for a period of one (1) year thereafter, Customer shall not directly or indirectly solicit any employee or independent contractor of Agency (“Restricted Personnel”) to terminate his/her employment/contractor relationship with Agency.  In the event of a violation of this Section by Customer, Customer hereby agrees to compensate the Agency in an amount equal to one hundred percent (100%) of such Restricted Personnel’s annual compensation for the first year of the engagement or employment by Customer. 

CLIENT RESPONSIBILITY FOR ACCURACY

You shall be responsible for the accuracy, completeness and propriety of information concerning your products and services which you furnish to us verbally or in writing in connection with the performance of this Agreement.

LIMITED WARRANTY

Agency represents and warrants that it will perform the Services in a diligent, professional and competent manner in accordance with industry standards, utilizing personnel with a level of skill commensurate with the Services to be performed.

AGENCY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF QUALITY, FREEDOM FROM ERROR, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AGENCY, ITS AGENTS OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY PROVIDED HEREIN. 

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE, SHALL WE, OUR SUBSIDIARY AND PARENT COMPANIES OR AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS DAMAGES AND LOST REVENUES DAMAGES) THAT RESULT FROM, RELATE TO, OR ARISE OUT OF THE USE OF OUR STRATEGIES, MESSAGING, COPY, MATERIALS, PRODUCTS, OR SERVICES MADE AVAILABLE BY US IN ANY WAY. MOREOVER, AGENCY’S TOTAL LIABILITY UNDER THE PROPOSAL AND THESE TERMS OF SERVICE SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO AGENCY PURSUANT WITHIN THE TWELVE (12) MONTHS PRECEDING THE EVENT UNDERLYING THE CUSTOMER’S CLAIM FOR DAMAGES.

DISPUTES

Regardless of the place of signing the Proposal, the Customer agrees that for purposes of venue, the Proposal was entered into in Oakland County, Michigan, USA and any dispute shall be resolved by binding arbitration in Oakland County, Michigan, USA, in accordance with the rules of the American Arbitration Association. The prevailing party shall be entitled to recover the costs of arbitration unless otherwise determined by the arbitrator, and shall be entitled to reasonable attorney's fees as determined by the arbitrator. This Agreement shall be governed and construed in accordance with the laws of the State of Michigan, USA.

TERM & TERMINATION

The term of the parties’ relationship shall commence as of the date the Proposal is signed or as otherwise indicated in the Proposal, and shall continue (a) until Agency has completed the Services, or, if there is no definitive completion of the Services contemplated in the Proposal, (b) for a period of six (6) months (the “Initial Term”), provided that the Proposal and the relationship of the parties as contemplated therein shall be automatically renewed for successive periods of six (6) month each (each a “Renewal Term”) unless either party provides written notice to the other party at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term of its election to terminate the Services.  

Either party may also terminate the Services and the relationship of the Parties if the other party defaults in the performance of any of its material duties and obligations and the default is not cured within thirty (30) days of the receipt of notice of said default, or if the default is not reasonably curable within said period of time, unless the defaulting party commences cure within said period of time and diligently proceeds to cure the default. 

Agency reserves the right to terminate the Services and its relationship with Customer for any reason upon thirty (30) days’ written notice. 

ENTIRE AGREEMENT

These Terms of Service, together with the applicable Proposal, contain the entire agreement between the parties relating to the subject matter and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter. 

UPDATES

These Terms of Service may be amended and updated from time to time at the sole discretion of the Agency.  Modified versions of these Terms of Service will be considered effective as of the date and time posted to the Agency's website.  Customer’s continued use of the Services after such modifications are posted will signify Customer’s continued acceptance of, and agreement to be bound by these Terms of Service, as modified.