Tosten Marketing LLC Terms of Service Version 2020
Client hereby agrees to the following general terms and conditions with Tosten Marketing, LLC, a Washington State limited liability company, in consideration for professional services provided to Client.
A. Tosten Marketing Service. Tosten Marketing (hereinafter, “TM”) is a professional online marketing management company, specializing in the online advertisement of insurance agency businesses. TM is engaged in the following business activities, but not limited to: website creation and hosting, search engine optimization (SEO), social media management (including Facebook, LinkedIn, etc.), and brand creation.
B. Client. Client is an Insurance Agent and/or an Insurance Agency business, contracting with TM for professional online marketing management services.
- Services. In exchange for the Payment described in Section 2, below, TM hereby agrees to perform marketing services in the form of online advertisement, licensing online content and websites, SEO and related services in TM’s discretion (hereinafter “TM Service”).
- License Agreement: For all websites created by TM on behalf of Client, TM hereby grants Client a license to “use” such website(s) and intellectual property that is recorded or published on such website[s]. Client may “use” the website in the following ways during the term of this agreement: (1) Client may hold the website out as its own to the general public, (2) Client may add content to the blog located on the website, and (3) Client may receive communications to and from the website. Client acknowledges that Websites (and all content on those websites) created by TM on Client’s behalf are the sole property of TM, unless expressly stated otherwise in an agreement signed by TM.
- Term. The term of this agreement shall be for a period of 1 calendar year, commencing on the effective date and ending one calendar year thereafter. After this initial 1-year term, this agreement will automatically renew on a month-to-month basis unless terminated in accordance with the terms of this agreement (see “Termination”).
- Payment. As consideration for the TM Service, Client hereby agrees to pay TM in accordance with the following:
- (a) Invoicing. TM shall invoice Client on a monthly basis. Client hereby consents to receiving invoices via email, in electronic form (all invoices shall be sent using the PAYPAL payment service, or other generally accepted electronic payment format).
- (b) Payment “Due Date”. Payment is due in full upon the Due Date. Clients shall be billed on the 1st or the 17th of each month (“Due Date”), whichever date coincides with Client’s original sign up date within the first month of service. For the avoidance of doubt, Clients who sign up for the TM service on the 2nd day of the month shall be billed on the 17th of the month. Clients who sign up for the TM service on the 18th day of the month shall be billed on the 1st of the month. Monthly Payments, or any payments, not received within 10 calendar days of the Due Date shall incur late fee charges (see Section 2.2, below).
- (c) Payment Terms. Payment is due in full upon Due Date. Payments not received within 10 calendar days of their due date will incur a $50.00 late fee charge. NSF Checks will also incur a $75.00 charge. Payments that become more than 30 days past due shall incur interest at the lesser of: the rate of 12.0% per annum or the highest rate lawfully permitted.
- Termination of Agreement/Cancellation of Service. The initial term of this agreement is one year. Client may not terminate this agreement prior to the close of the initial term. Client may terminate this agreement at the close of the initial term by providing TM with 30 days advance notice prior to the end of the initial term or any term thereafter under this agreement.
- Notice of Termination. Notice of termination is to be delivered in any of the following forms: U.S. mail or Email. The notice of termination shall be stated in clear and unequivocal terms and provided to: Tosten Marketing, 18121 NE 125th Street, Redmond, WA 98052, or by Email: email@example.com
- Breach. To the extent that: (1) any amount owed under this agreement remains unpaid for more than 60 days past the Due Date, or (2) Client misappropriates any of the content or websites owned by TM, TM may terminate this agreement immediately and without notice, and all payments contemplated under this agreement shall immediately become due, together with any associated fees and interest payments, including any future payments that would be owed but for the breach. TM’s election of remedies under this agreement shall not be exclusive. TM shall have the rights, in addition to the remedies available to it under this agreement, to all the rights and causes of action available to it at law.
- No Warranty. Client acknowledges that TM does not guarantee the results of the TM Service. Whether any client will receive higher volumes of Internet traffic or a specific Internet audience is contingent on many factors, many of which are outside the control of any marketing company’s professional services.
- Liability Disclaimer. Client shall be responsible for all content published on behalf of Client through the TM Service. Client warrants that all information provided to TM for purposes of publication is true and that Client has the legal right to publish such information.
- Hold Harmless & Indemnification. Client, and its successors and/or assigns, agree to indemnify, defend, and hold harmless TM, its members, and agents, from any and all liability, claims, or threatened lawsuits arising from the TM Service that are contemplated under, and arising under, or related to, this agreement.
- Hold Harmless & Indemnification. Website Hack: Client, and its successors and/or assigns, agree to indemnify, defend, and hold harmless TM, its members, and agents, from any and all liability, claims, or threatened lawsuits arising from the TM Service that are contemplated under, and arising under, or related to, this agreement including a website they host or websites they have created if the site (s) are “Hacked.” “Hack” means gaining control of, denying access to or unauthorized access to the website (including using another member’s username and password), causing malicious damage or interference with this website’s operations and includes: mail bombing; propagating viruses, worms or other types of malicious code; deliberate attempts to overload a computer system; broadcast attacks or any other method designed to damage, degrade or interfere with the operation of a computer system or website.
- Governing Law. The laws of the State of Washington (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this agreement and all of the transactions it contemplates, including, without limitation, its validity, interpretation, construction, performance, and enforcement.
- Venue. The parties agree to litigate any and all controversies arising from or relating to this agreement in the exclusive jurisdiction of the following courts: the Western District of Washington, or any state court presiding in the city of Seattle, WA.
- Any party bringing a legal action or proceeding against any other party arising out of or relating to this agreement or the transactions it contemplates shall bring the legal action or proceeding in either the United States District Court for the Western District of Washington or in any court of the State of Washington sitting in Seattle, WA.
- Each party to this agreement consents to the exclusive jurisdiction of: (i) The United States District Court for the Western District of Washington and its appellate courts; and (ii) Any court of the state of Washington sitting in Seattle, WA and its appellate courts, for the purpose of all legal actions and proceedings arising out of or relating to this agreement or the transactions it contemplates.
- Each party agrees that the exclusive choice of forum set forth in this Section does not prohibit the enforcement of any judgment obtained in that forum or any other appropriate forum.
- Modifications, Additions, & Deletions to this Agreement. Any changes to this Agreement must be in the form of a separate writing that is dated, and then signed by both Parties to be valid. Any change must reasonably identify this Agreement and, if applicable, the term it is changing to be valid, e.g., referencing the date, the article number and sub-article number of the Agreement is sufficient. Any change shall not require additional consideration to be effective. Any valid assignment of the rights and obligations under this Agreement does not constitute a change to this Agreement.
- Waivers. The parties may not waive any rights in this agreement, except pursuant to a writing executed by the party or parties against whom any amendment or waiver is sought to be enforced.
- Failure or Delay to exercise rights herein. No failure or delay in (1) exercising any right or remedy or (2) requiring the satisfaction of any condition, under this agreement, and no course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition.
- Scope of waiver. A waiver made in writing on one occasion is effective only in that instance and only for the purpose that it is given and is not to be construed as a waiver on any future occasion or against any other person.
- Event of Inconsistency. To the extent any course of dealing, act, omission, failure, or delay in exercising any right or remedy under this agreement constitutes the election of an inconsistent right or remedy, that election does not: (1) constitute a waiver of any right or remedy; or (2) limit or prevent the subsequent enforcement of any contract provision.
- Exercise of remedies. No single or partial exercise of any right or remedy under this agreement precludes the simultaneous or subsequent exercise of any other right or remedy. The rights and remedies of the parties set forth in this agreement are not exclusive of, but are limited to, any rights or remedies now or subsequently existing at law, in equity, or by statute.
- Severability. If any provision of this agreement or its application to any party or circumstance is held invalid, illegal or unenforceable to any extent, the remainder of this agreement and the application of that provision to the parties or to the circumstances is not affected and is to be enforced to the fullest extent permitted by applicable law, provided that if the essential terms and conditions of this agreement for each party remain valid, binding and enforceable.
- Attorney Fees and Costs. If any legal action or other proceeding is brought under this agreement, in addition to any other relief to which the successful or prevailing party is entitled, the prevailing party is entitled to recover, and the non-prevailing party shall pay, all (a) reasonable attorneys’ fees of the prevailing party, (b) court costs, and (c) expenses, even if not recoverable by law as court costs (including, without limitation, all fees, taxes, costs and expenses incident to litigation or any tribunal proceeding, appellate, bankruptcy, and post-judgment proceedings), incurred in that action or proceeding and all appellate proceedings. For purposes of this section, the term “attorney fees” includes, without limitation, paralegal fees, investigative fees, expert witness fees, administrative costs, disbursements, and all other charges billed by the attorney to the Prevailing Party.
- Entire Agreement. This agreement represents the entire agreement of all relevant and material terms between the parties with respect to the subject matter of this agreement. This agreement supersedes any other agreement or understanding, written or oral, that the parties may have had with respect to this agreement. No statement or inducement with respect to the subject matter by either party or by an agent or representative of either party, which is not contained in this agreement, shall be valid, binding or enforceable between the parties.
- “Agreement” defined. This Agreement includes this document in addition to any modifications, additions, deletions, & waivers properly executed in accord with terms of this Agreement.
- Assignment. Any obligations or rights under this agreement may not be assigned to any third party without the express, written consent of both parties under this agreement.
- Cooperation. Client agrees to be truthful with the TM, to cooperate with TM, to keep the TM informed of any and all developments material to or related to services provided by TM, to diligently return phone calls, emails, and other correspondence from TM, to keep TM advised of Client’s most recent up-to-date contact information, and to abide by all of the terms of this agreement.
- Term/Survival of Obligations. The restrictions on the use and disclosure of Confidential Information contained in this Agreement shall survive the expiration of this Agreement and remain in effect until such Confidential Information becomes known to the general public other than as a result of Recipient’s breach of obligations to Discloser.
- Injunctive Relief. Client acknowledges that breach of this agreement, inlcuding misappropriation or unauthorized use of TM’s intellectual property (as described in Section 2), would irreparably injure TM, which injury could not adequately be compensated by money damages. Accordingly, Client agrees that in the of Client’s breach, including misappropriation or unauthorized use of TM’s intellectual property, TM may seek and obtain injunctive relief from the breach or threatened breach of any provision of this Agreement without requirement to post bond, in addition to other legal remedies.