Marketing Services Agreement
Terms and Conditions governing the provision of marketing services by Dispojoy to clients. This Agreement is effective as of the date of the last signature on the initial Statement of Work.
Services
Agency agrees to provide marketing services as described in one or more Statements of Work (each, an "SOW") signed by both parties. These services may include, but are not limited to, the management of SMS marketing campaigns, email marketing campaigns, and digital advertising campaigns (collectively, the "Services"). Each SOW will be incorporated into and form a part of this Agreement.
Client Obligations and Warranties
Client understands and agrees that the successful and lawful execution of the Services is dependent upon Client's provision of accurate, complete, and compliant materials and data. Client represents, warrants, and covenants to Agency that:
Data and Contact Lists
For all contact lists, including but not limited to email addresses and telephone numbers, provided to the Agency for use in connection with the Services (the "Client Data"), Client has obtained and will maintain all necessary rights, permissions, and consents required by any and all applicable laws and regulations.
TCPA and CASL Compliance
Client specifically warrants that it has secured all necessary consents from individuals to receive commercial electronic messages, including SMS text messages and emails, in full compliance with the Telephone Consumer Protection Act (TCPA) in the United States and Canada's Anti-Spam Legislation (CASL) in Canada. For contacts in the United States, this includes obtaining "prior express written consent" for any marketing messages sent via automated means. For contacts in Canada, this includes obtaining either express consent or maintaining a valid basis for implied consent as defined under CASL.
Do-Not-Contact Registries
Client warrants that it has and will continue to scrub all Client Data against all applicable federal, state, and provincial Do-Not-Call (DNC), Do-Not-Email, and Do-Not-Mail registries prior to providing such data to the Agency. This includes, but is not limited to, the National Do-Not-Call Registry maintained by the Federal Trade Commission and the Reassigned Number Database (RND) maintained by the Federal Communications Commission. Client is solely responsible for managing and honoring all opt-out and unsubscribe requests from individuals within the timeframes required by applicable law.
Record Keeping
Client warrants that it maintains accurate and complete records of all consents obtained, including the date, time, method of consent collection, and the specific language presented to each individual at the time of consent. Client shall retain such records for a minimum of five (5) years and shall provide such records to Agency upon request.
Reassigned Numbers
Client acknowledges that telephone numbers may be reassigned to new owners over time and warrants that it has implemented procedures to identify and remove reassigned numbers from Client Data prior to providing such data to Agency.
Content and Materials
Client is solely responsible for all content, materials, products, and services that it provides to the Agency or directs the Agency to use in the provision of Services ("Client Materials"). Client warrants that the Client Materials do not and will not infringe upon or violate the intellectual property rights, privacy rights, or any other rights of any third party, nor will they contain any material that is defamatory, obscene, or otherwise unlawful.
Indemnification
Critical Protection Clause
This section establishes Client's responsibility to protect Agency from legal claims arising from Client-provided data and materials.
Client shall indemnify, defend, and hold harmless Agency, its officers, directors, employees, agents, and affiliates from and against any and all claims, actions, suits, demands, liabilities, losses, damages, penalties, fines, costs, and expenses (including, without limitation, reasonable attorneys' fees) (collectively, "Claims") arising out of or in connection with:
- a)Any breach by Client of its representations, warranties, or obligations under this Agreement;
- b)The nature and content of the Client Materials and any information or data provided by Client, including Claims related to intellectual property infringement, defamation, or violation of publicity or privacy rights;
- c)Any and all Claims arising from the use of Client Data, including, but not limited to, allegations of violations of the TCPA, CASL, the CAN-SPAM Act, state-specific privacy laws (including but not limited to the California Consumer Privacy Act), or any other federal, state, or provincial laws or regulations governing marketing communications, data privacy, or consumer protection. This indemnification obligation applies regardless of whether a violation is ultimately proven, and includes all costs associated with responding to regulatory investigations and inquiries;
- d)Any personal injury, death, or property damage caused by any products or services promoted by Agency on behalf of Client.
Agency will provide Client with prompt written notice of any Claim, and Client will have the sole right to control the defense and settlement of any such Claim, provided that Agency may participate in the defense at its own expense and Client shall not settle any Claim in a manner that admits fault on behalf of Agency or imposes obligations on Agency without Agency's prior written consent. Agency will provide reasonable cooperation to Client in the defense of any Claim, at Client's expense. Client's indemnification obligations under this Section 3 shall survive the termination or expiration of this Agreement.
Limitation of Liability
Liability Cap
Agency's maximum liability is limited to fees paid in the prior six months.
IN NO EVENT SHALL AGENCY BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, OR LOST DATA, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, EVEN IF AGENCY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AGENCY'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CLIENT TO AGENCY UNDER THE APPLICABLE SOW DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Agency's Compliance Efforts
While Client bears sole responsibility for the compliance of Client Data and Client Materials, Agency agrees to implement reasonable measures to support compliance with applicable marketing laws, including:
- Providing opt-out mechanisms in all marketing messages as required by law;
- Processing opt-out requests received through Agency-controlled channels within ten (10) business days;
- Adhering to time-of-day restrictions for SMS messages as required by the TCPA (no messages before 8:00 AM or after 9:00 PM in the recipient's time zone);
- Including required identification information and physical address in email messages as required by the CAN-SPAM Act.
Agency makes no representations or warranties regarding the compliance status of Client Data or Client Materials and shall have no liability for any non-compliance arising from Client's provision of non-compliant data or materials.
Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law principles. For any disputes arising in the United States, the parties consent to the exclusive jurisdiction of the state and federal courts located in Delaware. For any disputes arising in Canada, the parties consent to the exclusive jurisdiction of the courts of the Province of Ontario.
Term and Termination
This Agreement shall commence on the date of the first SOW and shall continue until terminated by either party. Either party may terminate this Agreement upon thirty (30) days' written notice to the other party. Client's obligations under Sections 2, 3, and 4 of this Agreement shall survive any termination or expiration of this Agreement.
General Provisions
Entire Agreement
This Agreement, together with all SOWs, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter.
Confidentiality
Each party agrees to keep confidential all non-public information provided by the other party.
Independent Contractor
The relationship of the parties is that of independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties.
Severability
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.