- Smart Marketing Solutions will perform services for Client in connection with the planning, provision, creation and/or placing of Web Design, Content Marketing, Seo Optimization, social media management, PPC campaigns creation and management, research, advertising, marketing, consulting, creative and/or digital services for Client, during the Term, as provided in the accepted quotation or Scope of Work Document, as applicable, incorporated herein by reference (such services are collectively referred to as “Services”).
- During the term of this agreement, Client may wish to assign additional projects, products, or services to Smart Marketing Solutions beyond the Services outlined in the accepted quotation or Scope of Work Document as applicable (“Out-of-Scope Assignments”). Smart Marketing Solutions agrees to accept such Out-of-Scope Assignments only upon a separate written agreement with Client regarding additional compensation to be paid to Smart Marketing Solutions and other relevant terms and conditions, if applicable.
- Nothing in this Agreement will be deemed to require Smart Marketing Solutions to undertake any act or perform any services which in its good faith judgment would be misleading, false, libelous, unlawful, in breach of a contract, or otherwise prejudicial to Client’s or Smart Marketing Solutions’s interests.
- Client acknowledges that Smart Marketing Solutions may, in the rendition of the Services hereunder, engage third party suppliers and other vendors and subcontractors (“Subcontractors”) from time to time to provide certain services. Smart Marketing Solutions shall supervise such services and endeavor to guard against any loss to Client as the result of the failure of Subcontractors to properly execute their commitments, but Smart Marketing Solutions shall not be responsible for their failure, acts or omissions, except where such failure, acts or omissions are due to Smart Marketing Solutions’s negligence or willful misconduct.
- If Client enters into arrangements with third party vendors, subcontractors or suppliers regarding the provision of materials or services (“Preferred Suppliers”) and requests that Smart Marketing Solutions utilize such Preferred Suppliers in the discharge of Smart Marketing Solutions’s obligations hereunder, Client remains solely responsible for such Preferred Suppliers.
Smart Marketing Solutions shall submit to Client for its approval all elements of any materials to be produced or placed hereunder, including, but not limited to, all copy, layouts, slogans, websites artworks, graphic materials, and photography (collectively, “Materials”). Submission for prior approval of Materials will not be required to the extent that they are preliminary only.
- Fees, Payments, Expenses and Refunds
- As compensation for the Services rendered pursuant to this Agreement, Client agrees to pay Smart Marketing Solutions the fees as set out in the accepted quotation.
- Client shall reimburse Smart Marketing Solutions for all necessary incidental expenses. Incidental expenses include all expenses incurred for Client’s account in connection with Smart Marketing Solutions’s rendition of services and performance of duties hereunder. Smart Marketing Solutions shall obtain Client’s prior written authorization before incurring any Incidental expenses. All Expenses not paid directly by Client shall be paid within seven (7) days of receipt of Smart Marketing Solutions’ notification. All Expense reimbursements shall be made at Smart Marketing Solutions’ direct out-of-pocket costs, without any markup for overhead, administrative costs, or otherwise.
- Client shall pay, reimburse, and/or hold Smart Marketing Solutions harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated except income taxes, which are levied or imposed by reason of the performance of the professional services under this Agreement, except income taxes.
- Payments referred to herein shall not be refundable under any circumstances, including but not limited to the termination of this Agreement for whatever reason.
- Client’s Default
- Client shall be deemed in default of this Agreement upon the failure to comply with any of the terms and conditions of the Agreement, including, but not limited to, the obligation to make any payment as and when due. Upon default, Smart Marketing Solutions shall have all rights and remedies available, including termination of this Agreement and institution of an action for all applicable damages. Payments not made on the due date shall be subject to late charges equal to the maximum amount permitted under applicable law. Smart Marketing Solutions may suspend all services on notice until the amounts outstanding are paid in full.
- If Smart Marketing Solutions delays or refrains from exercising any rights under this Agreement, Smart Marketing Solutions does not waive, nor will Smart Marketing Solutions lose those rights. If Smart Marketing Solutions accepts late or partial payments from the buyer, Smart Marketing Solutions does not waive the right to receive full and timely payments and other charges due under this Agreement.
Smart Marketing Solutions may create or develop trademarks for Client, in the form of tag lines, slogans, logos, designs, or product and brand names (collectively, the “Marks”). Client shall ultimately be responsible for confirming availability and registering such Marks, even though, pursuant to the accepted quotation or Scope of Work Document as applicable, Smart Marketing Solutions may assist in coordinating the effort associated with clearing and registering the Marks.
- Third Party Licenses
In addition to any other fees set forth in this Agreement, Client shall be required to purchase any applicable third party licenses for any third party products that are necessary for Smart Marketing Solutions to design and develop Client marketing websites.
- Client hereby grants Smart Marketing Solutions the right to use the name and service marks of Client in its marketing materials or other oral, electronic, or written promotions, which shall include naming Client as a client of Smart Marketing Solutions and a brief scope of services provided.
- In addition, Client hereby grants Smart Marketing Solutions the right to display its logo (or other identifying information) and a hyperlink to Smart Marketing Solutions’ website on the home page of Client’ website. Any use of Smart Marketing Solutions’ logos or links on Clients website must be approved in writing by Smart Marketing Solutions. Either party may elect to issue a press release related to this Agreement. In doing so, any release shall be approved by the other party and such approval shall not be unreasonably withheld.
- Term and Termination
- This Agreement will commence on the Effective Date and shall continue and will continue in full force and effect for three (3) months and thereafter renew on monthly basis.
- Either party may terminate this Agreement earlier than term discussed above by giving 30 Days written notice to the other party upon the occurrence of any of the following events: i) Either party wishes to terminate the Agreement, for any reason, and such decision, and respective 30 Days written termination notice to the other party, occurs within ninety (90) days of the Effective Date. ii) The commission by the other party of a material breach of this Agreement, which breach is not cured within thirty (30) days of the other party’s receipt of written notice of such breach; or iii)The other party has or may be commencing a voluntary or involuntary bankruptcy, receivership or similar proceeding with respect to such other party.
- Client shall pay Smart Marketing Solutions for all services rendered and work performed up to the effective date of termination. Accordingly, Smart Marketing Solutions will send to Client a final bill for the last month of service prorated by the number of days of service for the respective month prior to termination.
- Within ten (10) days after the termination or expiration of this Agreement, each party shall return to the other all Proprietary or Confidential Information (defined below) of the other party (and any copies thereof) in the party’s possession or, with the approval of the party, destroy all such Proprietary or Confidential Information.
- The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memorandum, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; ii) was previously known to the receiving party or rightly received by the receiving party from a third party; iii) is independently developed by the receiving party; or iv) is subject to disclosure under court order or other lawful process.
- The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s Proprietary or Confidential Information shall remain the sole and exclusive property of that party.
- The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Smart Marketing Solutions and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.
- Responsibilities; Representations and Warranties
- Smart Marketing Solutions represents and warrants that i) the Services provided hereunder will be performed in a professional manner, and ii) any software, hardware, websites, web-based or technology-related Services (collective “Electronic Services”) will be free of material bugs or defects for thirty (30) days after delivery. Such warranty does not extend to any modification of Services by anyone other than Smart Marketing Solutions or its Subcontractors at the time of such modification, any abuse or misuse of Services by Client, or use of Services in an operating environment that differs materially from the specifications agreed to by the parties.
- Except as set forth in this agreement, electronic services are provided on an “as is” and “as available” basis, and Smart Marketing Solutions expressly disclaims all other warranties, express and implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
- Smart Marketing Solutions makes no warranty of any kind, whether express or implied, with regard to any third party products, third party content or any software, equipment, or hardware obtained from third parties.
Client shall indemnify, defend, and hold harmless Smart Marketing Solutions, its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, shareholders, and agents (each an “Smart Marketing Solutions Indemnitee”) from and against any and all Loss incurred by an Smart Marketing Solutions Indemnitee based upon or arising out of any third-party claim, allegation, demand, suit, or proceeding (each, a “Claim”) made or brought against any Smart Marketing Solutions Indemnitee with respect to any advertising, branding, research or other products or services which Smart Marketing Solutions prepared or performed for Client hereunder to the extent that such Claim relates, in whole or substantial part, to: (i) the inaccuracy of any information supplied by Client or its agents to Smart Marketing Solutions including, without limitation, information concerning Client’s products and services, the products or services of Client’s competitors or Client’s product or service category; (ii) the use of any marketing, branding, research, advertising, packaging, trademark, software, hardware or other materials, or components thereof, furnished by Client or its agents to Smart Marketing Solutions to be included in any Materials or media placements; (iii) the use of any materials or data provided or created by Smart Marketing Solutions and changed by Client or its agents or used in a manner different from that agreed by the parties; (iv) risks or restrictions known by Client where Client nonetheless elected to proceed; (v) death, personal injury, or product liability (including health and safety) claims or actions arising from the use of Client’s products and services; (vi) the unauthorized or improper use of Materials or the Marks by Client, Client’s designees, licensees, distributors, franchisees or Client Affiliates; (vii) claims brought by Client’s employees for employment discrimination, other employment or labor disputes, breach of contract, personal injury or other civil law matters, or claims brought by those parties with whom Client has a contractual or supplier relationship; (viii) allegations of patent, trademark or trade dress infringement or any other violation of a patent, trademark or trade dress right; (ix) any material breach of the terms of this Agreement by, or any act of omission of, Client or its agents or employees relating to media commitments made by Smart Marketing Solutions pursuant to Client’s approval as provided for herein; and (x) the negligence, gross negligence, bad faith, or intentional or willful misconduct of Client or its employees, agents or Client Affiliates.
- Limitation Of Liability
Excluding indemnification obligations or damages arising from breach of a party’s confidentiality obligations, Smart Marketing Solutions shall not be liable to the Client, regardless of the form of action, whether in contract, tort or otherwise, for any lost profits (excluding direct damages for Smart Marketing Solutions’s anticipated fees), business interruption, or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to this agreement, nor shall Smart Marketing Solutions’s aggregate liability for any other damages arising out of this agreement exceed the revenue paid by Client to Smart Marketing Solutions in accordance with the applicable accepted quotation or scope of work document, as applicable.
- All Materials developed or prepared by Smart Marketing Solutions or its employees or Subcontractors for Client hereunder that are subject to copyright, trademark, patent, or similar protection shall become the property of Client and deemed “Work Product” provided that (i) the Materials are produced in final form (i.e., ready to be disseminated to the public) by Smart Marketing Solutions for Client within six (6) months of being proposed by Smart Marketing Solutions and (ii) Client has paid to Smart Marketing Solutions all fees and costs associated with creating and, where applicable, producing the Materials.
- All title and interest to Work Product shall vest in Client as “works made for hire”. To the extent that the title to any such Work Product may not, by operation of law or otherwise, vest in Client as a work made for hire or any such Work Product may not be considered a work made for hire, all right, title and interest therein is hereby irrevocably assigned by Smart Marketing Solutions to Client. In order to assure that its employees and Subcontractors do not possess proprietary rights in the Work Product that are inconsistent with Client’s possession of such rights, Smart Marketing Solutions will, as necessary, obtain the assignment and conveyance to Client, or to Smart Marketing Solutions for the benefit of Client, of any proprietary rights that such persons or entities may then have or may have in the future to such Work Product.
- Notwithstanding any other provision of this Agreement, Smart Marketing Solutions shall retain all right, title and interest in and to, including any intellectual property rights with respect to, any data, designs, processes, specifications, software, applications, source code, object code, utilities, methodologies, know-how, materials, information and skills (and any derivative works, modifications and enhancements thereto) owned, acquired or developed by Smart Marketing Solutions or its licensors, and regardless of whether incorporated in any Work Product, (i) prior to the Effective Date; (ii) independently of, or not in connection with the performance of, the Services; (iii) in the general conduct of its business or to serve general functions that are not specific to Client’s unique requirements; or (iv) if generally applicable, non-site specific and unrelated to the “look and feel” of the Materials or other deliverable, in connection with the Services (or partially in connection with the Services) (collectively, “Smart Marketing Solutions Materials”).
- Subject to fulfillment of Client’s payment obligations hereunder, Smart Marketing Solutions hereby grants Client a worldwide, perpetual, irrevocable, royalty-free, nonexclusive license, with right to sublicense (but only for the benefit of Client or its permitted successors or assigns), to use Smart Marketing Solutions Materials actually incorporated into Work Product pursuant to this Agreement as necessary for or in connection with the use, management and maintenance of such Work Product, provided that Client shall not have the right to publish or distribute any Smart Marketing Solutions Materials other than as part of such Work Product or to create derivative works of Smart Marketing Solutions Materials.
The failure of any party to seek redress for violation of or to insist upon the strict performance of any agreement, covenant or condition of this Agreement shall not constitute a waiver with respect thereto or with respect to any subsequent act.
- Force Majeure
Neither Client nor Smart Marketing Solutions shall be liable to the other for any failure, inability, or delay in performing hereunder if caused by any cause beyond the reasonable control of the party so failing, including, without limitation, an Act of God, war, strike, or fire; but due diligence shall be used in curing such cause and in resuming performance.
- Independent Contractors
No Partnership or Joint Venture. Client and Smart Marketing Solutions agree that Smart Marketing Solutions shall perform its duties under this Agreement as an independent contractor. Furthermore, Smart Marketing Solutions is not a true party of interest of Client, and therefore, limited in its control over Client’s business.
- Third Party Rights
A person who is not a party to the Contract shall have no rights under the Contract.
If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the provision in question shall not be affected thereby.
- Governing Law, Jurisdiction, and Venue
- This Agreement and the rights of the parties hereunder shall be governed by and interpreted in accordance with the internal laws of Albania, without regard to its conflict of laws rules or choice of law principles.
- Exclusive jurisdiction and venue for any claims made by either party against the other shall be within the state and courts located in Tirana.
This Agreement has been duly executed the day and year first before written
SIGNED by ____________________ SIGNED by____________________
[ Name and Title of person signing] [ Name and Title of person signing]
for and on behalf of Smart Marketing Solutions for and on behalf of [ Client name ]
Both Parties acknowledge the following Annexes to this agreement;
Scope of Work
[Insert Scope of Work]