This click-wrap Service Level Agreement (“Agreement”) is made as the date of payment (the “Effective Date”) between Total Social Solutions, LLC, a Nevada limited liability company (“TSS”), and you, either an individual or a business entity. (“Client”).
BY ISSUING A PURCHASE ORDER, PURCHASING, PAYING AN INVOICE, OR BY AGREEING TO DO BUSINESS WITH TOTAL SOCIAL SOLUTIONS LLC, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ISSUE A PURCHASE ORDER, PURCHASE, PAY AN INVOICE, OR AGREE TO DO BUSINESS WITH TOTAL SOCIAL SOLUTIONS LLC.
This Agreement describes Client’s purchase of Services and Deliverables from TSS.
All purchases, services, and subscriptions are subject to the terms of this Agreement.
Payment of any invoice constitutes acceptance of the terms herein, and no terms on the face of a purchase order or other agreement will any effect on the terms of this Agreement or this Invoice.
This Agreement is the result of negotiation in good faith between the Parties.
Changes to the scope of the services or licenses defined in the Proposal must be agreed to in writing by both Parties.
TSS reserves the right to refuse any Client order, in which case the parties agree that no obligation of TSS to the Client will have effect.
Deliverables for this purchase are defined at https://www.totalsocialsolutions.com/pricing-and-purchase/. Deliverable dates under this purchase are dependent upon deliverables from the Client (“Client Deliverables”). These Client Deliverables include but are not limited payment, prompt response to design and implementation questions, and graphics files. As development progresses, TSS may require additional Client Deliverables. Client agrees to provide additional Client Deliverables promptly. Delays in development due to delays in Client Deliverables will not be the responsibility of Total Social Solutions.
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.
TSS: Total Social Solutions LLC, a Nevada Limited Liability Corporation
Contract: any Proposal provided by TSS to the Client, together with these terms & conditions which shall be deemed to form part of such Contract.
Client: the person, firm or company who purchases Services from TSS.
Client’s Equipment: any equipment, systems, or facilities provided by the Client and used directly or indirectly in the supply of the Services.
Deliverables: all Documents, products and materials developed by TSS in relation to the Project or the Service in any form, including any computer programs or data and any other deliverables specified in the Proposal.
Document: includes, in addition to any document in writing, any artwork, drawing, map, plan, specification, diagram, design, picture or other image, report, tape, disk or other device or record embodying information in any form.
Expenses: the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by TSS in connection with the Services.
Client Materials: all Documents, information and materials provided by the Client relating to the Services.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: all Documents, information and materials provided by TSS relating to the Services which existed prior to the commencement of the Contract including computer programs and data.
Project: any project for the provision of Services (other than under the terms of a Retainer) and which is described in a Proposal.
Proposal: any proposal or quotation provided by TSS to the Client and which is agreed between the parties.
Retainer: a Contract under which TSS agrees to provide ongoing Services for a fixed number of days/hours per month, or a fixed Service every month, (or at such other intervals as shall be agreed). All of TSS’ flat-fee marketing services (e.g. Bronze, Silver, Gold, and Titanium) contracts are Retainer agreements.
Services: such marketing and/or PR services, or any other services (such as web hosting) which the parties agree that TSS shall provide to the Client.
Third Party Costs: the cost of all services and products acquired by TSS from the third parties in connection with the provision of the Services, including print, mailshots, venue hire, postage, couriers, website hosting services, advertising, data sourcing, and the supply of any materials.
Website: any website designed, created or hosted by TSS under the terms of any Proposal.
Website Software: where the Contract includes website development, the software for the Website commissioned by the Client.
1.2 Condition, schedule and paragraph headings shall not affect the interpretation of these conditions.
1.3 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
2. APPLICATION OF CONDITIONS
2.1 These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s purchase order, confirmation of order, acceptance of a Proposal or specification, or implied by law, trade custom, practice or course of dealing.
2.2 Any proposal or quotation submitted by TSS to the Client is valid for a period of 14 days from its date, provided that TSS has not previously withdrawn it.
3. COMMENCEMENT AND DURATION
3.1 TSS shall provide the Services from such date as TSS shall specify.
3.2 The Services shall continue to be supplied until the Project is completed or, in the case of a Retainer, until the Contract is terminated by one of the parties giving to the other not less than 3 months notice (or such other period of notice as is stated in the Proposal), unless the Contract is terminated in accordance with clause 13.
4. TSS’s OBLIGATIONS
4.1 TSS shall make a commercially reasonable effort to provide the Services, and to deliver the Deliverables to the Client, in accordance in all material respects with the Proposal.
4.2 TSS shall make a commercially reasonable effort to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
4.3 It is the Client’s responsibility to check and approve in writing any proofs submitted by TSS, and TSS accepts no responsibility or liability for any errors identified once the proofs have been approved. For custom graphics work, the client will be responsible for providing TSS with clear, written direction to TSS, along with specific graphic assets client wishes TSS to use. If requested, TSS will make up to one round of revisions to the first custom graphic rendering free of charge. Additional rounds of edits may be made, and will be billable at an hourly rate. Additionally, TSS shall be entitled to charge for all costs and expenses incurred in making any alterations to proofs once these have been approved by the client.
Graphics revisions are intended to refine graphical design within an existing brand, not for rebranding efforts.
Monthly content for social media networks will be submitted for client approval with a minimum of five business days for review and comments. Your campaign manager will advise you of your specific deadline. TSS will make a reasonable effort to respond to revisions and edits received after the deadline within 5 business days. Work done for such edits after the deadline will be billed to the client at $50/hour net 5 days.
4.4 The Services include the use of only one tracking phone number for the purpose of measuring ROI on your social media efforts.
5. CLIENT’S OBLIGATIONS
5.1 The Client shall:
(a) cooperate with TSS in all matters relating to the Services and appoint a Client Manager in relation to the Services or the Project, who shall have the authority contractually to bind the Client on matters relating to the Services or that Project;
(b) provide, for TSS, its agents, sub-contractors and employees, in a timely manner and at no charge, access to the Client’s premises, office accommodation, data and other facilities as requested by TSS;
(c) provide, in a timely manner, such Client Material and other information as TSS may request and ensure that it is accurate in all material respects; and
(d) inform TSS of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client’s premises where TSS (or its agents, subcontractors or employees) may be required to attend.
5.2 If TSS’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, TSS shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay, and TSS shall be entitled to charge the Client as if the Services had been performed in full.
5.3 The Client shall be liable to pay to TSS, on demand, all reasonable costs, charges or losses sustained or incurred by TSS (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to TSS confirming such costs, charges and losses to the Client in writing.
5.4 The Client shall not, without the prior written consent of TSS, at any time from the date of the Contract to 12 months after the termination of the Contract, Project, or the last date of supply of the Services, solicit or entice away from TSS or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of TSS in the provision of the Services.
5.5 Any consent given by TSS in accordance with clause 5.4 shall be subject to the Client paying to TSS a sum equivalent to 50% of the then current annual remuneration of TSS’s employee or sub-contractor or, if higher, 50% of the annual remuneration to be paid by the Client to that employee or sub-contractor.
6. CLIENT MATERIALS
6.1 The Client shall ensure that the Client Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
6.2 If the Services include Website hosting, the Client acknowledges that TSS has no control over any content placed on the Website by visitors to the Website and does not purport to monitor the content of the Website. TSS reserves the right to remove content from the Website where it reasonably suspects such content is Inappropriate Content. TSS shall notify the Client promptly if it becomes aware of any allegation that any content on the Website may be Inappropriate Content.
6.3 The Client shall indemnify TSS against all damages, losses and expenses arising as a result of any action or claim that the Client Materials constitute Inappropriate Content.
6.4 TSS may include a statement on the home page of the Client’s website or other social media landing sites that the Client is developing social media presence in collaboration with TSS.
6.5 TSS will make all commercially reasonable efforts to ensure compliance with relevant laws (including HIPAA). The Client does have ultimate responsibility to review and object to offensive or illegal content authored on Client’s behalf. In failing to object in a timely manner, the Client agrees to indemnify and hold harmless TSS for any damages caused due to the posting of the material.
7. CHANGE CONTROL
7.1 If either party requests a change to the scope or execution of the Services, TSS shall, within a reasonable time, provide a written estimate to the Client of:
(a) the likely time required to implement the change;
(b) any variations to TSS’s charges arising from the change; and
(c) any other impact of the change on the terms of the Contract.
7.2 TSS may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If TSS requests a change to the scope of the Services for any other reason, the Client shall not unreasonably withhold or delay consent to it.
7.3 If the Client wishes TSS to proceed with a change, TSS has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges and any other relevant terms of the Contract to take account of the change.
7.4 TSS may charge for its time spent in assessing a request for change from the Client at its standard daily/hourly fee rates.
8. CHARGES AND PAYMENT
8.1 Where the Services are provided on the basis of a Retainer:
(a) the charges payable shall be calculated in accordance with TSS’s standard daily/hourly fee rates, as amended from time to time by TSS, or charges for a pre-defined list of tasks will be derived from a fixed-price offer from TSS to the Client
(b) TSS shall ensure that every individual whom it engages on the Services completes time sheets recording time spent, and TSS shall use such time sheets to calculate the charges covered by each invoice.
8.2 Where the Services are provided as a Project, the total price for the Services shall be the amount set out in the Proposal.
8.3 In either case the charges exclude the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom TSS engages in connection with the Services, and taxes, which TSS shall add to its invoices at the appropriate rate.
8.4 TSS will charge the Client for all Third Party Costs stated in any Proposal or as otherwise agreed with the Client. TSS shall be entitled to retain any rebate or discount offered by the relevant third party without passing this on to the Client, or otherwise reserves the right to charge the Client (at its absolute discretion) an uplift on the amount charged by such third party;
8.5 Charges for Services provided on the basis of a Retainer will be payable monthly in advance, or as otherwise stated in the Proposal. In the case of Services provided as a Project, TSS shall, unless otherwise stated in a Proposal, invoice the Client on completion of the Project and such invoice is payable in cleared funds within 14 days of receipt. In either case TSS reserve the right to require payment in advance of any Expenses or Third Party Costs, failing which payment for such Expenses and/or Third Party Costs shall be payable in cleared funds within 14 days of receipt of invoice.
8.6 Without prejudice to any other right or remedy that it may have, if the Client fails to pay TSS on the due date, TSS may:
(a) charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from the US Federal Bank at the beginning of that month, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and TSS may claim interest; and
(b) suspend all Services until payment has been made in full.
8.7 Time for payment shall be of the essence of the Contract.
8.8 All sums payable to TSS under the Contract shall become due immediately on its termination, despite any other provision. This clause 8.8 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.9 TSS may, without prejudice to any other rights it may have, set off any liability of the Client to TSS against any liability of TSS to the Client.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights in the Deliverables (including in the content of any Website, Website Software, or social media content), but excluding the Client Materials, arising in connection with the Contract shall be the property of TSS, and TSS hereby grants the Client a non-exclusive license to use a single copy of this content as directed by TSS for the purposes for which the Deliverables are provided. Such license shall terminate on termination of the Contract howsoever arising.
9.2 The Client shall indemnify TSS against all damages, losses and expenses arising as a result of any action or claim that the Client Materials infringe the Intellectual Property Rights of any third party.
9.2.1 If the Services include SMS or email marketing, the client agrees to indemnify TSS against all damages, losses and expenses arising as a result of any action or claim that contact information supplied by the Client are not compliant with CAN-SPAM laws.
9.3 The indemnities in clause clause 9.2 are subject to the following conditions:
(a) the indemnified party promptly notifies the indemnifier in writing of the claim;
(b) the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
9.4 The indemnities in clause 9.2 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.
10. CONFIDENTIALITY AND TSS’ PROPERTY
10.1 The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Client by TSS, its employees, agents or sub-contractors and any other confidential information concerning TSS’s business or its products which the Client may obtain. The Client shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Client’s obligations to TSS, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Client.
10.2 All Documents and materials supplied by TSS to the Client (including Pre-existing Materials) shall, at all times, be and remain, as between TSS and the Client, the exclusive property of TSS, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to TSS, and shall not be disposed of or used other than in accordance with TSS’s written instructions or authorisation.
10.3 This clause 10 shall survive termination of the Contract, however arising.
11. LIMITATION OF LIABILITY – THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION
11.1 This clause 11 sets out the entire financial liability of TSS (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
(a) any breach of the Contract;
(b) any use made by the Client of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Conditions limits or excludes the liability of TSS:
(a) for death or personal injury resulting from negligence; or
(b) fraud, or any other liability which cannot be excluded or limited under applicable law.
11.4 Subject to clause 11.2 and 11.3:
(a) TSS shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for loss of profits, loss of revenue, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss of corruption of data or information, or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) TSS’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services during the 12 months preceding any liability claim.
11.5 TSS guarantees that the Services supplied by it shall comply with the specification contained in each contract and in the absence of any such specification shall comply with TSS’ appropriate specification.
11.6 Third party products supplied and/or sub sublicensed by TSS as part of the Services will be supplied in accordance with the relevant supplier’s applicable terms. The Client agrees that it will at all times comply with the provisions of such standard terms.
11.7 With the supply of the Services, TSS provides absolutely no guarantees as to the business results received thereof. The guarantees given by TSS are strictly limited to what is specifically called out by the Agreement. TSS can not be liable for any content created by the media or customers, with reference to the Client.
12. DATA PROTECTION
12.1 The Client acknowledges and agrees that details of the Client’s name, address and payment record may be submitted to a credit reference agency, and Personal Data will be processed by and on behalf of TSS in connection with the Services.
12.2 Where the Services include website hosting, TSS warrants that, to the extent it processes any Personal Data on behalf of the Client:
(a) it shall act only on instructions from the Client; and
(b) it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
13.1 Subject to clause 13.3, the Contract shall terminate automatically on completion of the Project, or a contract may be terminated on 3 months notice (Termination Period).
13.1.1 Should the Client choose to exercise the 3 months notice option in section 13.1, notice of termination must include:
Written notification of termination sent to email@example.com.
Written notification of the effective date of termination.
Payment for Retainer or Project fees for the entire Termination Period, or a request for an invoice for such payment. Such invoice will be payable net 5, or notification will be considered invalid and regular marketing operations and billing will continue.
13.1.2 Should the Client choose to terminate without exercising the 3 months notice option, then the Client will be responsible for 3 months of Retainer or Project fees, payable net 5 from date of termination, as penalty for failing to provide by sections 13.1 and 13.1.1 of the Agreement. Notification will be considered invalid and regular marketing operations and billing will continue if payment is not received within 5 business days.
13.2 Without prejudice to any other rights or remedies which TSS may have, TSS may terminate the Contract without liability to the Client immediately on giving notice if:
(a) the Client commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the bankruptcy or winding up of the Client, or circumstances arise which entitle a court of competent jurisdiction to make a bankruptcy or winding-up order of the Client; or
(d) an administrator or receiver is appointed of any of the Client’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint an administrator or receiver or manager of the Client, or if any other person takes possession of or sells the Client’s assets; or
(e) the Client makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the Client ceases, or threatens to cease, to trade; or
(h) the Client takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.3 On termination of the Contract under clause 13.2:
(a) the Client shall immediately pay to TSS all of TSS’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, TSS may submit an invoice, which shall be payable immediately on receipt;
(b) the Client shall, within a reasonable time, return all Pre-existing Materials and Deliverables. If the Client fails to do so, then TSS may enter the Client’s premises and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping; and
(c) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
13.4 If the Client feels that TSS is not performing its duties under the Contract, the Client may request corrective action from TSS in writing. Client’s notice to TSS must contain an itemized list of duties in the Contract that have not been completed. TSS will have 30 days to respond in writing with either (a) evidence that it has correctly performed those duties, or (b) a description of corrective action that is being performed. If, at the end of 30 days, TSS has not responded to the Client, or has not initiated corrective action, the Client may terminate the Contract by notifying TSS in writing.
14. FORCE MAJEURE
TSS shall have no liability to the Client under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of TSS or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
Subject to clause 7, no variation of the Contract shall be valid unless it is in writing and signed by or on behalf of each of the parties.
16.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
16.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
17.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
17.3 The parties agree, in the circumstances referred to in clause 17.1, and if clause 17.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
18. STATUS OF PRE-CONTRACTUAL STATEMENTS
Each of the parties acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
19.1 The Client shall not, without the prior written consent of TSS, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
19.2 TSS may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
20. NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. RIGHTS OF THIRD PARTIES
the Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address or fax number, provided in writing by that party from time to time (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this clause 22 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
23. GOVERNING LAW AND JURISDICTION
23.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of the state of Nevada.
23.2 The parties irrevocably agree that the courts of the state of Nevadashall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.
24. EVALUATION TERMS
24.1 TSS standard products are found at https://www.totalsocialsolutions.com/solutions/ (Standard Products). If this Agreement is for product, service, or combination thereof that is not a Standard Product, it will be considered an Evaluation unless specified otherwise on a signed document by an authorized representative of TSS.
24.2 For any Evaluation agreement, TSS is the sole owner of all social media marketing accounts related to any social media marketing campaigns managed by TSS.
24.3 TSS may request the Client to convert his account to any of the Standard Products with 30 days notice. If the Client does not convert his account, the account may be closed and management and ownership of all associated accounts will revert to TSS.
24.4 Attempts on the part of the Client to change passwords or stop TSS from reclaiming ownership of social media accounts will be considered a violation of the terms of these Evaluation Terms. Client agrees that Client will pay TSS for a twelve (12) month subscription of the highest-priced Standard Product immediately if Client violates the Evaluation Terms.
25.1 TSS may from time to time use licensed content to advertise TSS services on Client’s networks. Use of this licensed content in no way constitutes a license or transfer of ownership of this licensed content to Client. All such license rights and ownership for licensed content remain with TSS.
25.2 TSS may request that client pull down this licensed content upon termination of the Agreement.
26. SERVICE LEVEL RESTRICTIONS
26.1 PHONE SUPPORT – All client support issues will be first managed through the provided private client discussion board. TSS may, at its sole discretion, elect to escalate an issue and opt into a phone discussion in order to quickly resolve a matter. No issues will be escalated to phone support for Bronze marketing package clients.
26.2 PHONE SUPPORT HOURS – Clients will be entitled to phone support based on the following restrictions:
Bronze – 1 hours/month
Silver – 3 hours/month
Gold – 15 hours/month
Titanium – 20 hours/month
Phone support in excess of these amounts will be billed at $125/hour, billable in 15 minute increments. Billing will be performed monthly at the end of the calendar month, net 5 days. Phone support hours expire at the end of the calendar month and may not be carried over into subsequent months.
26.3 CALL ANALYTICS – Each package includes call analytics. You will be entitled to a quantity of incoming calls based on your marketing package, as below:
Bronze – 50 calls/month
Silver – 100 calls/month
Gold – 250/month
Titanium – unlimited calls/month
Incoming calls in excess of these quantities will be billed to the client at a rate of $1.00 per call at the end of the calendar month. Billing will be performed monthly at the end of the calendar month, net 5 days.
27. EXCLUSIVE CUSTOM AUTHORED CONTENT
If your service package includes exclusive authored content, or if you are purchasing exclusive authored content, the following terms apply:
27.1 Each order you submit to us must not infringe on copyrights, moral rights, service marks, trademarks, or any other rights of another entity.
27.2 In case of violation of any of these terms, we reserve the sole right to cancel your order or terminate your account.
27.3 You may approve an article, or ask for improvements in that article. All approvals or requests for improvements must occur within 48 hours. If you request improvement, you must specifically request areas for improvement. Every request for improvement must include the text to be improved, a request for how it should be improved. If you do not request improvement within 48 hours, then the article will be considered accepted.
27.4 You have the sole and exclusive right to display, distribute, publish, perform, reproduce, create derivative works, and sell the delivered and accepted text in any type of media, including, but not limited to, print and/or online media, in whole or in part, via all electronic or other online media throughout the world.
27.5 Until payment has been approved and an article has been accepted, you have no rights whatsoever to any delivered article.
27.6 THIS SERVICE AND ALL RELATED MATERIALS ARE PROVIDED ON AN ‘AS-IS’ BASIS WITHOUT WARRANTY OF ANY KIND. SPECIFICALLY, THERE ARE NOT EXPRESS OR IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, QUALITY, SUITABILITY, FACTUALITY, COMPLETENESS, ACCURACY, OR NON-INFRINGEMENT OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED AND ARE INCAPABLE OF MODIFICATION, RESTRICTION, OR EXCLUSION BY THE LAW IN YOUR JURISDICTION. YOU AGREE THAT USE OF THESE MATERIALS AND SERVICES ARE AT YOUR OWN RISK. NO ORAL OR WRITTEN STATEMENTS MADE BY THIS SITE OR ANY EMPLOYEE OF TOTAL SOCIAL SOLUTIONS WILL OVERRIDE ANY OF THE TERMS IN THIS AGREEMENT.
27.7 UNDER NO CIRCUMSTANCES SHALL TOTAL SOCIAL SOLUTIONS’ AGGREGATE LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY YOU FOR SERVICES OVER THE 6 MONTHS PRECEDING THE APPLICABLE CAUSE OF ACTION.
27.8 THIS SERVICE IS THAT OF BROKERING AUTHORING SERVICES. UNDER NO CIRCUMSTANCES WILL TOTAL SOCIAL SOLUTIONS OR ANY EMPLOYEE OF TOTAL SOCIAL SOLUTIONS BE RESPONSIBLE FOR THE CONTENT OF ANY AUTHORED CONTENT.
27.9 You agree to indemnify and hold harmless Total Social Solutions and all owners and employees thereof against any and all claims, liabilities, and other costs. This indemnification will include without limitation reasonable legal, attorneys’, and accounting fees incurred in the defense of any claim or suit arising out of these Terms of Service.
27.10 No terms of services or any rights granted hereunder may be leased, sold, assigned, or transferred by you.
28.1 CAN-SPAM act
You agree to review and understand applicable CAN-SPAM laws. You further agree to only provide TSS with contact information that is compliant with the CAN-SPAM act. Pursuant to section 9.1.1 of this Agreement, You will indemnify TSS for all legal actions resulting from non-compliant CAN-SPAM activity.
This agreement has been entered into on the date payment is submitted by the Client.
29 iPhone Apps
All deliverable smartphone software is subject to the terms and conditions found at http://www.customapplicationsllc.com/terms-and-conditions/.
30 The Guarantee
In order to be eligible for Total Social Solutions’ guarantee, client account must satisfy all of these criteria:
Minimum email list of 1500 past patients
Minimum Facebook community of 450 past patients
Alteration of service package voids guarantee
Client emails and promotional posts must be made available to TSS per marketing plan
3 business days required for campaign-related questions
Client must approve one major promotion per month
Client must opt into 2 vendor promotions for the term of the campaign
Refund eligibility starts after 1 full month of messaging
All social spaces must be substantially set up (Facebook, Yelp, Newsletter, SMS, Twitter, and Google+). Delays in setup will result in delays for eligibility for the guarantee.
Front desk must pass TSS internal marketing audit for support of interactive marketing campaign.