Terms and Conditions
EFFECTIVE DATE: January 1st 2020
These Terms and Conditions (“Terms and Conditions”) are incorporated by reference into any Social Kapture, LLC Master Consulting Services Agreement that explicitly incorporates them by reference (the “Subject Agreement”). All Section and Article references in these Terms and Conditions shall be references to provisions in these Terms and Conditions unless explicitly stated otherwise. Capitalized terms used in these Terms and Conditions without definition shall have the meanings given to them in the Subject Agreement. All references to this “Agreement” shall mean the Subject Agreement, together with these Terms and Conditions incorporated therein, as the same may be modified from time to time in accordance with Section 14(h) hereof.
1. PERFORMANCE OF THE SERVICES
The Consultant agrees to perform the services described in the Initial Service Order and any services subsequently ordered or modified by Client through a Subsequent Service Order (collectively, the “Services”) on the terms set forth in this Agreement and any Subsequent Service Order, as applicable, with respect to the Property described in Section 2 of the Subject Agreement (the “Property”). A ‘Subsequent Service Order’ means an Electronic Authorization for the Consultant to modify the Services or provide the Client additional services on terms proposed by the Consultant. An “Electronic Authorization” means authorization by the Client by electronic means, such as email or click-through acceptance of terms on the Consultant’s platform. Each Subsequent Service Order will describe the Services to be provided, the compensation for those Services (including any monthly fees, Setup Fees and Deposit), the Service Start Date, Term of Service (provided that, if no Term of Service is provided, the Term of Service thereof will be on a month-to-month basis), any specific deliverables and may include other terms and conditions. Each Subsequent Service Order will be governed by the terms and conditions of this Agreement. The Initial Service Order and any Subsequent Service Orders are referred to individually herein as a “Service Order”.
The Client hereby authorizes the Consultant to place advertising on behalf of the Client with respect to the Property. Client is responsible for the content of any advertising. Consultant does not discriminate on the basis of race, age, gender, sexual orientation or on any other basis or against any class of persons.
3. ENGAGEMENT INFORMATION
Information regarding engagement on the property’s Social Media Platforms shall be made available to Client on Consultant’s online platform in a manner determined by Consultant.
4. ADDITIONAL PAYMENT TERMS
a) Early Termination Fee. If the Service Order includes an Early Termination Fee, that fee is due and payable within thirty (30) days of the termination of this Agreement or such Service Order in the case of termination by the Client in accordance with Section 12(a) or the Consultant in accordance with Section 12(b) prior to the expiration of the Term of Service for such Service Order.
b) Deposit. The purpose of the Deposit is to secure the payment of Client’s obligations under this Agreement and shall be returned to the Client following termination of this Agreement once all amounts due hereunder are paid by Client. The Consultant is not required to segregate any Deposit into a separate account or to pay interest to the Client on any Deposit. Upon any delinquent payment hereunder, the Consultant in its sole discretion may satisfy all or a portion of such delinquent payment with any Deposits then held by the Consultant.
c) Third Party Costs. Client shall reimburse Consultant for third-party costs and expenses incurred in providing the Services.
d) Returned Check Charges. In the event of a returned check, Client shall be responsible for a return-check fee of Twenty-Five United States Dollars ($25.00).
e) Rebranding Fee. In the event Client modifies its branding or visual identity during the Term, Client shall, in each such instance, be responsible for a Rebranding Fee in the amount set forth in the Initial Service Order.
f) Late Payments. In the event that any amount owed to Consultant hereunder is not paid when due, (i) Client will be responsible for a late fee of 1.5% per month (or the maximum rate allowed by applicable law if it is less) and (ii) Consultant may suspend performance of any of its obligations under this Agreement. If Client’s Services are suspended by Consultant and Client thereafter restarts Services, Consultant may charge an additional Setup Fee for restarting Services in an amount equal to the Setup Fee in the Initial Service Order.
g) Sales Tax. The charges required to be paid hereunder do not include any amount for taxes or other governmental charges. Client shall reimburse Consultant and hold Consultant harmless for all sales, use, excise, property, or other taxes or levies which Consultant is required to collect or remit to applicable tax authorities (including any interest or penalties thereon). This provision does not apply to Consultant’s income or franchise taxes.
h) No Modification, Discount or Pro-Rations. In the event (i) the Client directs Consultant not to post on one or more Social Media Platforms, (ii) the Consultant is prevented from posting on any Social Media Platforms due to lack of full access, whether through any action or inaction of Client, as determined by the Consultant in its sole discretion, or (iii) the Client, for any reason, deletes or modifies content serviced by the Consultant, the Client shall not receive any modifications, discounts or pro-rations of amounts due hereunder.
5. INDEPENDENT CONTRACTOR
The Consultant is an independent contractor and is not an agent or employee of the Client. The Consultant is free to perform services for other individuals or entities. The Consultant has no authority to bind the Client by contract or otherwise without the Client’s prior written authorization. The Consultant will perform the Services under the general direction of the Client, but shall determine, in the Consultant’s sole discretion, the manner and means by which the Services are accomplished, including but not limited to the time Consultant allocates to the Services to be performed.
6. SOCIAL MEDIA PLATFORMS
In connection with provision of its Services, Consultant may, from time to time, use stock images, videos, GIFs, illustrations, quotes, user-generated content and other information to create content (all such content being referred to herein as “posts”) which may be displayed on Client’s social media sites and feeds (the “Social Media Platforms”), as appropriate. With respect to any stock images or other content sourced by Consultant, Consultant shall use its reasonable efforts to secure all rights Consultant deems appropriate in order to display (“post”) such images and other content on Client’s Social Media Platforms. The rights to such images and other content as secured by Consultant shall belong exclusively to Consultant, and the posts created by Consultant shall be the sole and exclusive property of Consultant (subject to any licenses secured with respect to stock imagery). Consultant may display and use such image and information in provision of services for clients other than the Client. Client shall not re-use (including, without limitation, by re-posting), modify, alter, edit or change the posts created by Consultant in any manner. Client shall have no rights of ownership (or otherwise) to such posts other than for such posts to be displayed on Client’s Social Media Platforms as determined by Consultant, in accordance with the terms of this Agreement.
8. CONFIDENTIAL INFORMATION
9. FACEBOOK CERTIFICATION
If Client provides Consultant with any resident or prospect information (e.g., name, email addresses) for marketing purposes, Client shall obtain permission to use such information in accordance with Facebook terms (e.g., Facebook Custom Audience Terms). Consultant is not responsible for the platform, technology or algorithm used by social media companies as part of the Services provided by Consultant.
The Client shall provide the Consultant with high-resolution digital copies of the Client Information (as defined in Section 11(b)) and all other information requested by Consultant to provide the Services set forth in this Agreement, including, but not limited to, completed Onboarding Form, Onboarding call, full access, as determined by Consultant in its sole discretion, to social media accounts (e.g., Instagram, Facebook), the Property’s description, amenities, unit size and pricing information (collectively, the “Property Information”) along with lifestyle images, photos of the property and an operable website (together with the Client Information and Property Information, the “Deliverables”).
11. REPRESENTATIONS AND WARRANTIES; OWNERSHIP AND LICENSE
a) Authority. The execution, delivery and performance of the Agreement by Client and the transactions contemplated by the Agreement have been duly and validly authorized and approved by all necessary action on the part of, and the Agreement has been duly and validly executed and delivered by Client. The Agreement is a legal, valid and binding obligation of Client, enforceable against Client in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditor’s rights generally and subject, as to enforceability, to general principles of equity (whether applied in a proceeding in equity or at law).
b) Ownership. Client has and will obtain sufficient title and ownership of (or licenses to) the website domain, information and material, including, without limitation, branding information, logo, signage, graphics, floor plans, images and photographs it provides to Consultant in connection with this Agreement (“Client Information”). Client grants to Consultant a non-exclusive, in perpetuity, royalty free license to use and/or display the Client Information to provide services with respect to the Property (“License”), including for use with subsequent owners or managers of the Property.
c) Warranty. Client represents and warrants that it has the right to grant the License set forth herein, and the grant of such license does not violate any agreement to which the Client is a party or violate, infringe or constitute a misappropriation of the copyrights, trademarks, service marks, trade secrets or other intellectual property rights of others.
a) Termination for Convenience. Any Service Order that is on a month-to-month Term of Service may be terminated by either Party for any or no reason effective on the last day of the calendar month following the calendar month in which a Party provides written notice of termination to the other Party.
b) Termination for Cause. This Agreement or any Service Order may be terminated by either Party (the “Notifying Party”) by written notice to the other Party (the “Notified Party”) if the Notified Party (i) breaches a material obligation under this Agreement and such breach continues uncorrected for a period of ten (10) business days after notice in writing thereof to the Notified Party; or (ii) becomes insolvent or is adjudged as bankrupt; makes an assignment for the benefit of creditors; has a received appointed; or files a petition of bankruptcy.
c) Mutual Termination. This Agreement or any Service Order may be terminated at any time upon mutual written agreement of the Parties.
d) Effect of Termination and Survival. A termination of this Agreement shall terminate all Service Orders then in effect. Upon the termination of this Agreement or a Service Order, the Client shall be obligated to pay the amounts owing to the Consultant for Services performed through the date of such termination. Notwithstanding anything to the contrary contained herein, in the event of termination of an Advertising Package for the following month with less than ten (10) days’ notice before the first of such month, the Client shall also be obligated to pay the Monthly Fees for Advertising Services for that month and any charges for advertising placements that could not be cancelled by Consultant in accordance with Section 6 of the Subject Agreement. Any payment obligations due to Consultant, and Sections 4(g), 6, 8, 11, 12, 13 and 14 shall survive any termination or expiration of this Agreement.
13. LIMITATION OF LIABILITY
CONSULTANT SHALL NOT BE LIABLE TO CLIENT FOR DAMAGES FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT OR ORDER FROM, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN AN AMOUNT THAT EXCEEDS ONE MONTH OF MONTHLY FEES. In no event and under no circumstances shall Consultant be liable to the Client for any special (including, lost profits or loss of financing), incidental, direct, consequential, punitive, or penalty damages of any kind or nature in connection with this Agreement, even if Consultant has actual knowledge of the possibility of such damages. Consultant is not responsible for any actions of Social Media Platforms, including, but not limited to, service outages, service interruptions, account termination, loss of account assets (data, followers, rankings, etc.), or termination of service. Consultant is not responsible for content posted by third parties, including Client’s employees, representatives, contractors or agents. Client shall notify Consultant within five (5) business days of any and all claims that concern Consultant.
a) Governing Law; Severability. This Agreement will be governed by and construed in accordance with the laws of the State of California excluding that body of law pertaining to conflict of laws. Any suit arising out of this Agreement shall be brought in the appropriate federal or state court located in the City and County of Los Angeles, in the State of California, provided that such court has jurisdiction over the subject matter. Each Party agrees that such court shall have personal jurisdiction over it. If any provision of this Agreement is for any reason found to be unenforceable, the remainder of this Agreement will continue in full force and effect.
b) Notices. Any notice, consent or approval required or permitted under this Agreement shall be in writing and shall be deemed given when delivered (1) personally; (2) by postage mail; or (3) by e-mail with confirmation of delivery. Notices shall be provided to the addresses set forth in Section 2 of the Subject Agreement (provided that either party may change its address for notice by giving written notice thereof in accordance with the terms hereof).
c) Complete Understanding; Modification. This Agreement constitutes the complete and exclusive understanding and agreement of the Parties and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the Parties.
d) Successors and Assigns. This Agreement is personal in its nature and the Client shall not assign or transfer its rights under this Agreement. The provisions of this Agreement shall inure to the benefit of, and shall be binding on, each successor of the Consultant whether by merger, consolidation, transfer of all or substantially all assets, or otherwise, and the permitted assigns of Client.
e) No Waiver. The waiver by either Party of a breach of any provision of this Agreement shall not operate as, or be construed as, a waiver of any later breach of that provision.
f) Counterparts; Facsimile or Electronically Transmitted Signatures. This Agreement may be executed electronically or by facsimile and in any number of counterparts and by each of the Parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which together shall constitute one and the same agreement. A facsimile or electronically transmitted signature shall be deemed an original for purposes of evidencing execution of this Agreement.
h) Waiver; Modification. No waiver or modification of this Agreement or of any covenant, condition or limitation contained herein shall be valid or effective unless it is (a) in writing and duly executed by the parties hereto, or (b) accepted by Client through an Electronic Authorization. Client’s continued engagement of Consultant’s Services after notification of modifications of these Terms and Conditions by Consultant will be deemed electronic acceptance by Client hereunder.
i) Management Company Authorization. Client hereby authorizes Consultant to share with the Management Company identified in Section 2 of the Subject Agreement information about Consultant’s Services provided to Client hereunder.
End of Terms and Conditions