Terms of Service
Posted: 01 April 2017
Last Modified: 10 February 2018
Terms of Service Agreement (the “Agreement“) is made and entered into on (the “Effective Date”)
BY AND BETWEEN
McPherson Marketing Group LLC having its principal office located at 8601 Six Forks Rd., Raleigh, North Carolina 27615, represented by its Chief Executive Officer, Mr. Thomas McPherson (hereinafter referred to as “McPherson Marketing Group” or the “Company”)
(Insert Company Name) having its principal office located at (insert business address), represented by its (insert Client position and Name)(hereinafter referred to as “Insert Company Name” or the “Client”).
The Company and the Client will hereinafter jointly be referred to as the “Parties” and singly as the “Party”.
I. McPherson Marketing Group is in the business of creating custom website designs, providing website hosting, internet marketing, and ongoing maintenance;
II. (Insert the clients business information, mission, etc.); and
III. McPherson Marketing Group offers to provide its various web related services and solutions to Client’s desires to use these services to expand its business.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the adequacy of which is hereby acknowledged by the Parties, the Parties agree as follows:
- Description of Services. The Company shall provide the services (“Services”) as described in attachment (“Invoice”) to the Client in accordance with the terms and conditions of this Agreement.
- Delivery of Services.
The date on which the Company shall have completed the provision of Services shall be the completion date (“Completion Date“).
Services shall be deemed to have completed when the Company shall send a payment invoice or otherwise relay to the client that the provisions of Services have been completed
The Company shall commence the provision of the Services from the Effective Date of this Agreement.
As consideration for the provision of the Services by the Company, the price for the provision of the Services is “insert price point” (“Price“)
The Client agrees to pay the Price to the Company as agreed. In the event of cancellation of this assignment, a fee for work completed based upon the contract price and expenses already incurred shall be paid by the client.
The Client agrees that they shall not stop the payment on any ground whatsoever when such Payment has become due on Completion Date.
In case the Client wishes the Company to provide additional services or provide after-sales services after Completion Date, it shall first pay the total Price payable under this Agreement for the Services already rendered by the Company and then make any such request. The decision regarding the provision of such additionally requested services shall be at the sole discretion of the Company.
Upon or after the Completion Date, the Company shall send an invoice to the Client either through email, letter, or any other means as the Company may deem appropriate for the Services that it has provided.
The Client shall pay the total Price of the Agreement within 10 days of receipt of the invoice from the Company.
The method of payment of the Price by the Client to the Company shall be by:
b) Bank transfer.
c) Credit card. A processing fee of 3.0% will be added to the invoice if a credit card is utilized.
Taxes & Charges. Any charges payable under this Agreement are exclusive of any applicable taxes, tariff surcharges or other like amounts assessed by any governmental entity arising as a result of the provision of the Services by the Company to the Client under this Agreement and such shall be payable by the Client to the Company in addition to all other charges payable hereunder.
Late Payment.If the invoice is not paid within due date as per Clause 4.5 above, interest shall be added to and payable on all overdue amounts at the rate of 1.5% per month effective from the due date or at the maximum percentage allowed under applicable North Carolina law
In case of making any default in payment, the Client shall pay all costs of collection, including without limitation, reasonable attorney In addition to any other right or remedy provided by law, if the Client fails to pay Price for the Services when due, the Company shall be entitled to initiate legal proceedings against the Client.
- Terms and Termination
This Agreement shall be effective on the Effective Date mentioned hereinabove and shall continue, unless terminated sooner, until the Completion Date.
No fault termination. Either party may terminate the Agreement on no less than one month’s prior written notice to the other party.
Other Termination rights. Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
a) breaches any material provision of the Agreement and the breach is not:
i) remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach; or
ii) capable of being remedied;
b) has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of external administration, or ceases to continue business for any reason; or Files a petition in bankruptcy, or makes an assignment for the benefit of its creditors;
Consequences of expiry or termination.
a)Any termination of this Agreement, howsoever occasioned, shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
b)The Client must pay for Services provided before the termination date.
c) If the case of termination has occurred for any reasons whatsoever, the Company shall send an invoice comprising of the Service rendered till such Terminations. The Client shall be under obligation to pay such amount within 10 days of receipt of the invoice from the Company through any mode described under Clause 4.6 above.
Obligations continuing. Clauses which, by their nature are intended to survive termination, including clauses 3, 4 and 5, shall continue in force after Termination
Each party agrees that, unless it has the prior written consent of the other party, it will keep confidential at all times the Confidential Information of the other party; and ensure that any
Disclosure required. The obligations of confidentiality in clause 6.1 do not apply to any disclosure:
a)for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
b)required by law;
c)of Confidential Information which:
i. is publicly available through no fault of the recipient of the Confidential Information or its personnel; or
ii.was rightfully received from a third party without restriction or without breach of the Agreement.
- Property Rights. Upon final payment of the Services, ownership of the completed assembled website shall be transferred to the Client.
- Warranties. The Company shall provide its services and meet its obligations under this Contract in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally accepted standards in the Company’s industry, community, region, and will provide a standard of care equal to, or superior to, are used by service providers similar to the Company on similar projects.
- Default. The occurrence of any of the following shall constitute a material default under this Contract:
The failure to make a required payment when
The insolvency or bankruptcy of either party.
The subjection of any of either party’s property to any levy, seizure, a general assignment for the benefit of creditors, application or sale to or by any creditor or government agency.
- Meetings and Approvals. The Client agrees to meet with the Company as required by the Company until the project is completed. Milestone approvals and sign-offs must be responded to in a timely manner for the Company to stay on schedule. A non-response by the Client to a requested approval or sign-off will constitute that milestone or sign-off being a reason for placing the project in a holding status until approved by the Client.
- Electronic Commerce. The Client understands and acknowledges that from time to time, that State, Federal, and local laws and regulations may change, to include taxes, assessments, tariffs and levies which pertain to internet electronic commerce. The Client agrees that the Client is solely responsible for compliance with any and all laws and regulations and is responsible for all taxes, assessments, tariffs, and levies.
- Assignment of Project. The Company reserves the right to assign subcontractors to this project. At the sole discretion of the Client, work produced by subcontractors may be protected undersigned confidentiality agreements and shall remain the property of the Client or the Company respectively.
- Force Majeure. If performance of this Contract or any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such ev The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lockouts, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
- Use of Clients Materials. Should the Company, upon the Clients written request, verbal instruction or delivery of materials, utilize the Client materials which may include, but are not limited to, photographs, text, software, code, copyrighted material and/or materials that may be owned by third parties (“Client’s Materials”), The Client acknowledges and agrees that neither the Company nor its employees, agents or anyone acting on its behalf has made any representation to the Client regarding the Client entitlement to use the Client Material The Client acknowledges and agrees that the Client has relied on its own investigation to establish whether the Client is entitled to use the Client Materials. The Client agrees to defend, indemnify and hold the Company, its employees, agents or anyone acting on its behalf harmless from any and all claims of any kind including, but not limited to, all lawsuits for damages, royalties, penalties, interest, legal fees, expert fees and court costs of any kind (“Claims”) arising out of, related to, or alleged to arise out of or relate to any use of the Client Materials unless such Claims are due to the Company’s gross negligence or intentional misconduct.
- No Hire of Employees/Subcontractors. The Client agrees that the Client shall not solicit in an attempt to hire or contract directly with any employee employed by the Company nor any independent contractor who provides service for the Company for the same or similar services provided by the Company unless approval is granted.
- Final Product Testing. The Client agrees that the Client shall test the functionality of the website created or modified by the Company within 5 business days to ensure that it is working pursuant to the Client needs before it is used for the Client business or other related purposes. If the Client discovers that the website is not functioning properly within a 30-day window outside of testing and payment, the Client shall immediately notify the Company in writing so the Company can address the issue and determine if it falls inside the scope of this agreement. This clause, however, shall not give the right to the Client to hold payment of the Company and the payment shall be made by the Client within the due date as per this Agreement. The Client agrees that if the Client fails to test the functionality of the website and suffers damages as a result, the Client shall hold the Company harmless from any and all damages of any kind suffered by the Client.
- Dispute Resolution. The parties will attempt to resolve any dispute out of relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation, the parties will resolve the dispute using the
belowAlternative Dispute Resolution (ADR) procedure. Any controversies or disputes arising out of or relating to this Agreement will be submitted to mediation in accordance with any statutory rules of mediation. If mediation does not successfully resolve the dispute, either of the parties may proceed to initiate legal proceedings against the other before the appropriate court of law in Wake County, North Carolina.
- Entire Agreement. This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Contract. This Contract supersedes any prior written or oral agreements between the parties.
- Severability. If any provision of this Contract will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so.
- Amendment. This Contract may be modified or amended in writing by mutual agreement between the
parties,if the writing is signed by the party obligated under the amendment. In the event the Client wishes to make changes to any work by the Company that has already been approved and accepted by the Client including, but not limited to, design, graphics, text, layout of a site, SEO or campaign strategy, or, if in the opinion of the Company, any item of work requested by the Client notwithin the scope of Services, would require a laid out cost amendment to this agreement to move forward with requested changes.
- Governing Law. This Contract shall be construed in accordance with the laws of the State of North Carolina.
- Notice. Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
- Waiver of Contractual Right. The failure of either party to enforce any provision of this Contract shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Contrac
- Attorney’s Fees to Prevailing Part In any action arising hereunder or any separate action pertaining to the validity of this Agreement, the prevailing party, as determined by a Court of competent jurisdiction, shall be awarded reasonable attorney’s fees and costs, both in the trial court and on appeal.
- Construction and Interpretation. The rule requiring construction or interpretation against drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort.
8601 Six Forks Rd. Suite 400, Raleigh, NC 27615
6470 Rogers Rd. #284, Rolesville, NC 27571
Local: (919) 792-8794 or (919) 336-0103
Toll Free: (877) 958-9792
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6470 Rogers Road
Rolesville, NC 27571
Raleigh, NC 27615
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