Terms and Conditions
Last updated: February 2022
THESE TERMS AND CONDITIONS (“TERMS AND CONDITIONS”) APPLY TO ALL SMB TEAM LEGAL LLC (“SMB TEAM”) CLIENTS WHO ENTER INTO A SERVICE AGREEMENT WITH SMB TEAM WHEREBY SMB TEAM PROVIDES SERVICES TO THE CLIENT (THE “SERVICES”). SMB TEAM AND CLIENT ARE REFERRED TO HEREIN EACH AS A “PARTY” AND COLLECTIVELY, THE “PARTIES”). THESE TERMS AND CONDITIONS ARE INCORPORATED AND ARE PART OF THE SERVICE AGREEMENT; HOWEVER, THESE TERMS AND CONDITIONS WILL GOVERN THE USE OF THE SERVICES SMB TEAM PROVIDES TO CLIENT WHETHER OR NOT THE CIENT HAS SIGNED ANY SERVICE AGREEMENT.
THESE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE WITHOUT NOTICE, FROM TIME TO TIME, IN SMB TEAM’S SOLE DISCRETION. CLIENT ACCEPTS THESE TERMS AND CONDITIONS BY USING THE SERVICES WHETHER OR NOT CLIENT HAS SIGNED A SERVICE AGREEMENT.
TERMS NOT OTHERWISE DEFINED HEREIN HAVE THE MEANING SET FORTH IN THE SERVICE AGREEMENT.
1. Term of Service Agreement.
1.1 Term of Service Agreement. The term of the Service Agreement will be one year (the “Original Term”) and will continue for one year periods (each a “Renewal Term”) until terminated as set forth herein. The Original Term and any Renewal Terms thereto will be referred to as the Term.
1.2 Termination. Either Party may terminate the Service Agreement if they give notice to the other party prior to the end of the Original Term or any Renewal Term. The Client must provide written notice prior to the renewal date to one of the following:
SMB Team Legal LLC
Attn: William E. Hauser II, CEO
111 Presidential Blvd #251
Bala Cynwyd, PA 19004
or via written email to [email protected]
1.3 Breach. SMB Team may terminate this Agreement (i) any time when the Client fails to pay the Service Fee or any Additional Fees owed to SMB Team or any of its affiliates; or (ii) the Client materially breaches the Service Agreement or these Terms and Conditions.
1.4 Effect of Termination. Client will pay SMB Team in full for products actually delivered and services actually performed by SMB Team under the Service Agreement up and through the termination date of the Service Agreement.
2. Service Fees; Payments and Billing
2.1 Payment Terms. The Client will pay SMB Team for the Services set forth in the Service Agreement (the “Service Fee”). Payments from the Client to SMB Team will be made on the first day of each billing period, unless otherwise approved in writing by SMB Team. Clients must provide a credit card for all payments of Service Fees and any other fees owed to SMB. SMB Team will not be held liable for any payment declines and/or losses resulting from the misuse or decline of any payment or billing information. All fees will be paid in United States dollars.
2.2 Additional Services. All requests for additional services (the “Additional Services”) not provided as part of the Service will be agreed upon in writing before SMB Team will perform the Additional Services. Client will owe an additional fee for the Additional Services. The Additional Services will be complete when the Additional Services are delivered to the Client and not based on any subjective feedback of the Client. All Additional Service Fees (including, but not limited to setup, consulting, research and/or custom project requests) must be paid to SMB Team within one week of completion and invoicing the Client, and client authorizes SMB Team to run its credit card one week following the date the invoice is issued for the Additional Services.
2.3 Additional Expenses. SMB may incur expenses on behalf of the Client. SMB will only incur expenses approved by the Client, and the Client will reimburse SMB Team for all expenses incurred on the Client’s behalf.
2.4 Rebates/Adjustments. This Agreement is not subject to any rebates or discounts, unless agreed to by SMB Team in its sole discretion.
2.5 Expenses Related to the Services. In connection with providing the Services hereunder, SMB Team will be reimbursed for additional expenses that have been approved by both Parties. The Client will pay for third-party providers directly, unless agreed on between Client and SMB Team that SMB Team will incur the third-party expenses and be reimbursed by the Client.
2.6 Suspension of Services. If the Client is more than (30) days past due on payments to SMB Team or any third party affiliates, all Services will be suspended until all past due charges are paid. In this situation, the Client will continue to be responsible for any monthly charges during any period that Services are suspended or not delivered due to the Client’s breach, unless stated otherwise agreed to by SMB Team in writing.
2.7 Third-Party Payments. The Client understands that the Client may be paying for media on a third-party website (including but not limited to Google, Facebook, Instagram, Yahoo and Bing) which will be in addition to the Service Fee.
3. Services; Client Obligations.
3.1 The Services. During the Term, SMB Team will provide Client with the Services as outlined in the Service Agreement. SMB Team will have the sole discretion in the manner of producing and delivering the Services to Client; provided, however that SMB Team will be responsible for the performance of any subcontractor.
3.2 Cooperation. Client agrees to provide SMB Team the assistance, cooperation, and information reasonably necessary for SMB Team to fulfill its obligations under the Service Agreement. Client will identify a designated contact who will have authority to make decisions for Client regarding issues such as design and content approval. SMB Team will notify Client if Client’s actions may be preventing SMB Team from providing a Service as outlined in the Service Agreement. In such event, SMB Team may elect, in its sole discretion, to suspend or terminate the affected Services.
3.3 Delivery of Client Content. Client will make available to SMB Team, in a mutually agreeable electronic format, such information as is reasonably required for SMB Team to effectively fulfill and perform the Services (“Client Content”). Such information includes, but is not limited to, monthly updates on performance of Services for the duration of the Service Agreement. Client’s delivery of necessary content and/or information will be made within a commercially reasonable period after requested by SMB Team so that the development and release of the Services are not unreasonably delayed. Furthermore, the Client agrees to make its team available to SMB Team according to the relevant areas of responsibility as needed for completing the Services. If the Client cannot deliver the information to SMB Team, then the Client will not hold SMB Team liable for failure of execution of Services. To prevent instances where the Client cannot provide the information necessary for SMB Team to complete the Services, the Client will assign one contact person who has decision making authority for the Services to be carried out. The Client understands that SMB Team would prefer a 24-hour response time from the Client for all information requests that are pertinent to fulfillment of the Services. The Client waives the right to inspect, review or approve of the finished content produced by SMB Team, unless explicitly stated by the Client and approved of by SMB Team in writing. The Client understands that the expected results may be delayed and/or damaged significantly if it is required that all finished content be reviewed and approved of by the Client.
3.4 Limitations on Client Content. SMB Team reserves the right to refuse, modify, substitute, or remove any content, information, or other materials that may (i) be deemed to violate the privacy, personal, proprietary, or contractual rights of third parties; (ii) be contrary to SMB Team’s search engine optimization practices; or (iii) defame, expose to legal liability, or otherwise harm SMB Team or its affiliates.
3.5 Client Content Licenses and Permissions. Client will obtain all licenses and permissions needed to provide the Client Content and information to SMB Team. Client warrants that all information as provided in the Client Content in connection with the Services as provided herein, are the sole and exclusive property of the Client. Such information will include any trademark, service mark, copyright, or other intellectual property contained within the Client Content.
3.6 Review and Modifications to Client Content. Client understands and agrees that Client is solely responsible for reviewing Client Content as provided to SMB Team. It is Client’s responsibility to notify SMB Team of any changes to content that are required to comply with any ethical or other rules that apply to Client’s business. Client is solely responsible for complying with the advertising rules, rules of professional conduct, and any other rules that may apply to Client’s business during the performance of the Service Agreement. During the Term, Client may provide SMB Team with updated or additional Client Content, to incorporate within the Services. Client will identify and notify SMB Team of any obsolete Client Content for deletion purposes. Furthermore, Client will conform with SMB Team’s guidelines and product specifications when uploading and supplementing Client Content and other requested modifications.
4. Intellectual Property
4.1 Rights and Ownership. Except as otherwise provided, all rights, title and interest in and to all, (i) registered and unregistered trademarks, service marks, and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights, or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of SMB Team Services identified herein (“Intellectual Property Rights”) are owned by SMB Team or its licensors, and Client agrees to make no claim of interest in or ownership of any such Intellectual Property Rights. Client acknowledges that no title to the Intellectual Property Rights has been transferred by SMB Team to Client, and that Client has not obtained any rights, express or implied, in SMB Team or its licensors’ service, other than the rights expressly granted in the Service Agreement. Furthermore, SMB Team will, at all times, be the sole property owner of; (1) all internal processes used by SMB Team or SMB Holdings LLC, to complete Services for the Client; (2) all intellectual property, materials and work in progress that is not specifically created for the Client, even if having to do with any generalizable components of the Client’s industry or line-of-business.
4.2 Infringement. Client specifically agrees to not do anything that may in any way infringe upon or undermine SMB Team’s rights, title, or interest in SMB Team’s Intellectual Property Rights. This includes, but is not limited to, any sale, transfer, or gift of the whole or of any part of any item, data, or anything whatsoever that SMB Team owns. Client fully understands that SMB Team may reproduce, reuse, develop, and use in any other way anything within SMB Team’s ownership.
4.3 Client Deliverables; Grant of License. Any Client deliverable, such as a website or Facebook group, is and will remain the exclusive property of SMB Team until the annual Service Fee and outstanding expense reimbursements have been paid in full. SMB Team will grant Client a license to use the deliverable once Client’s Service Fee and expense reimbursements have been paid in full; provided, however, that except as set forth in this license grant, the license does not transfer to Client any Intellectual Property Rights that are owned by SMB Team or its licensors.
5. Confidential and Proprietary Information
5.1 Definition. “Confidential Information” is defined, in respect of each Party, as all data and information of a confidential nature, including know-how and trade secrets, relating to the business, the affairs and any development projects or other products or services of such Party. Confidential Information may be communicated orally, visually, in writing or in any other recorded or tangible form. Data and information will be considered to be Confidential Information if: (a) the relevant Party has marked them as such; (b) the relevant Party, orally or in writing, has advised the other Party of their confidential nature; or (c) due to their character or nature, a reasonable person in a like position and under like circumstances would treat them as secret and confidential.
Both Parties agree that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which either Party has obtained, except as authorized by the other Party in writing. This obligation will survive the expiration of the Service Agreement and will continue indefinitely.
Under no circumstances will either Party sell, publish, display, copy, distribute, or otherwise make available Confidential Information in any form or by any means, except as expressly permitted by the Service Agreement, including without limitation the transfer to a third party or, if not expressly prohibited by the Service Agreement, as allowed under the fair use provision of the Copyright Act, 17 U.S.C. § 107. Each Party will take all reasonable steps, in accordance with the best industry practices, to protect the security of the Confidential Information and to prevent unauthorized use or disclosure. Each Party is responsible for all access to and use of the Confidential Information by the other Party’s employees or agents or by means of the other Party’s equipment or usernames and passwords, whether or not the other Party has knowledge of or authorizes such access or use.
6. Representation and Warranties; Disclaimers of Warranties
6.1 Due Formation; No Conflict; Owner of Intellectual Property. Each Party represents and warrants that (i) it is duly formed and validly existing under the laws of its formation and has all the necessary powers to enter into and perform the Service Agreement; (ii) the execution and performance of the Service Agreement will not conflict with its certificate of formation or by-laws, or any applicable law or regulation, and will not breach any agreement, instrument, or order to which it is subject; and (iii) it is the owner of, or has a license to use, any copyrights, patents, trademarks, trade secrets, or other intellectual property granted or conveyed herein, and that any rights, licenses, or other uses granted by such Party do not infringe or misappropriate any right of any third party.
6.2 SMB Team. EXCEPT AS OTHERWISE STATED IN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CONTRACTOR NEITHER ASSURES NOR ASSUMES ANY LIABILITY TO ANY PERSON OR ENTITY FOR THE PROPER PERFORMANCE OF SERVICES. CONTRACTOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE COMPLETE OR FREE FROM ERROR, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON OR ENTITY FOR LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN THE SERVICE, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE.
Subject to Section 6 below, each Party agrees to indemnify and hold harmless the other Party, and its respective directors, stockholders, affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any negligence or willful misconduct of the indemnifying party, its respective members, partners, directors, stockholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with the Service Agreement. This indemnification will survive the termination of the Service Agreement.
8. Limitation of Liability
As part of the Service Agreement, the Client allows SMB Team to create and publish content, messages, media and advertisements on behalf of the Client to be used for the purposes of Social Media Optimization, Social Media Management, Search Engine Marketing, Search Engine Optimization, Pay-Per-Click Advertising, Display Advertising, Email Marketing, Website Development, Listing Management, Multimedia Development, Direct Messaging, Text Message Marketing, and other marketing activities, unless otherwise specified by the Client, in writing. The Client agrees to hold harmless SMB Team, its affiliates, employees and representatives against all liability, loss, damage and expense of any nature, including but not limited to attorneys’ fees, arising out of; (a) the publishing or creation of any content, messages, media and advertisements created by or on behalf of the Client, regardless of whether the Client participated in or approved of the creation or publishing of such content; (b) the content created or published by or on behalf of the Client before and/or after the inception of the Service Agreement; (c) any violation of the CAN-SPAM Act; (d) the products and/or services promoted, sold, presented and/or contained in the Client’s content or advertisements; and (e) any call-tracking services.
Under no circumstances will SMB Team be held liable for special, indirect, incidental, consequential, punitive, or exemplary damages, damages relating to loss of profit, loss of income or revenue, or loss of goodwill, for any reason whatsoever, including the result of errors or omissions, the rejection or removal of any advertising, any delay in displaying content, SMB Team third-party service provider(s) failure to display or distribute advertising, or SMB Team third-party service provider(s) failure to perform the Services. SMB Team’s acceptance of this agreement and the rates charged for the advertising and other services are based upon the limitation of SMB Team’s liability as set forth herein. Any estimates of performance made by SMB Team are provided for informational purposes only, and do not constitute, and will not be considered, a guarantee of performance or a guarantee of return. SMB Team’s liability for all claims brought by the Client are limited to the amount the Client has paid to SMB Team in the twelve (12) months prior to the date of the claim.
The Client acknowledges and agrees that SMB Team may be using third-party service providers and websites (“Suppliers”) to publish content on behalf of the Client and that SMB Team will not be held liable for any changes made or losses caused by a third-party service provider, including but not limited to algorithm changes, that result in any changes made to the Client’s results, advertising or placements.
9. Employee Solicitation and Hiring
During the Term of any Service Agreement and for twelve (12) months after the termination of the Service Agreement, both Parties agree to not directly or indirectly solicit, recruit or induce any employees to terminate his or her employment relationship with the other Party, especially if this is done with the intent of recruiting any employee to one’s own business. In addition, neither Party will offer any ‘side-jobs’ to employees of the other company, without written approval from the Client and/or SMB Team.
10. Ownership and Transfer of Assets
10.1 Ownership; Assignment. Ownership of all assets, including but not limited to, the website, content, landing pages and ads account, will be under SMB Team during the Original Term. After the first month of either the renewal contract or newly initiated contract (month 13 in total), the Client may request the assignment of ownership. SMB Team will assign ownership of the assets to the Client upon receipt of the written request. If the Client wishes to obtain ownership sooner than the stated time frame, the Client may do so by paying a one-time fee of $10,000 in full (in addition to any applicable transfer fees described below). This purchase of assets would not terminate any other terms of the Service Agreement,
10.2 Transfer of Assets. The Transfer of any data, including but not limited to, website content, blog posts, landing pages, and ads account information, can be done after the one-time transfer fee of $4,837 (per asset group) is paid in full. These transfer fees are applicable to any stage of the Original Term, the Renewal Term, or any future contract or agreement with any affiliate; and are independent from the ownership assignment, regardless of timing and whether or not the ownership assignment was requested or paid.
11. Force Majeure. If SMB Team is prevented from performing any of its obligations under the Service Agreement due to causes beyond the reasonable control of SMB Team, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes, fires, interruptions in telecommunications or internet services or network provider services (each, a “Force Majeure Event”), SMB Team’s performance will be excused and the time for performance will be extended accordingly provided that Company promptly takes all commercially reasonable steps to resume full performance. If SMB Team’s performance is prevented or delayed for more than thirty (30) consecutive days due to a Force Majeure Event, then Client may terminate the Service Agreement upon delivery of written notice to SMB Team.
12. General Terms.
12.1 Independent Contractor. SMB Team will act as an independent contractor under the terms of the Service Agreement and to perform the Services. SMB Team will retain the power and authority to supervise and control performance of the Services by SMB Team’s employees, including the power to discipline, hire and fire SMB Team’s employees. Nothing in the Service Agreement will be construed to (a) give either Party the power to direct or control the daily activities of the other Party, or (b) constitute the Parties as employer and employee, franchisor and franchisee, licensor and licensee, sublicensor, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking. SMB Team recognizes that the needs of the Client may change over the course of the Service Agreement and will accommodate such changing needs with modification of the specified Services by mutual agreement based on an equitable shift in work effort. SMB Team may work with any/all competitors of the Client, unless stated otherwise in writing.
12.2 Dispute Resolution. The Parties agree that in the event of a dispute or alleged breach of the Service Agreement, they will work together in good faith first to resolve the matter internally by negotiating between higher levels of management who have the authority to settle such controversy. If there is no resolution, the Parties will submit the dispute to binding arbitration; however, the Parties may agree to use a mutually agreed upon non-binding mediation prior to resorting to arbitration.
12.3 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING INVOLVING AN AGREEMENT RELATED DISPUTE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
12.4 Choice of Law. The Service Agreement and any other agreement between the Parties is governed by Delaware law regardless of its choice of law provisions.
12.5 Severability. In the event that any term or provision of the Service Agreement will for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other term or provision, and the Service Agreement will be interpreted and construed as if such term or provision, to the extent the same will be held to be invalid, illegal, or unenforceable, had never been contained herein.
12.6 Entire Agreement. This Agreement represents the entire agreement between the Parties regarding the subject matter hereof and supersede all previous representations, understandings or agreements, oral or written, between the Parties with respect to the subject matter hereof and will prevail notwithstanding any variances with terms and conditions of any order submitted.
12.7 No Waiver. No failure or delay by either Party in exercising any right under the Service Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. Use of the Services constitutes acceptance of the Service Agreement, which cannot be modified except by written instrument signed by the Parties hereto.
12.8 Attorney Fees; Expenses. In any legal action between the Parties hereto concerning the Service Agreement, the prevailing Party will be entitled to recover reasonable attorneys’ fees and costs. Except for actions for non-payment or breach of either Party’s intellectual property rights, no action (regardless of form) arising out of the Service Agreement may be commenced by either Party more than two (2) years after the cause of action has accrued.
12.9 Assignment. Neither Party may assign any right or obligation under the Service Agreement without the prior written consent of the other Party, except in connection with the sale, merger, or transfer of substantially all of the assets of such Party or to a wholly-owned subsidiary of such Party.
12.10 Enforcement Costs. If it becomes necessary for SMB Team to enforce the Service Agreement through an attorney, collection agency, or directly through small claims court, Client will pay all attorney’s fees, agency fees, court costs, and other collection costs, including without limitation post-judgment costs for legal services at trial and appellate levels.
12.11 Notices. All notices under the Service Agreement will be in writing, sent to the addresses set forth in the Agreement, sent via personal delivery including via courier service), e-mail. Notices will be effective upon confirmed signature and delivery if sent via personal delivery; or upon written confirmation receipt if sent via e-mail.