MARKETING AND LICENSE AGREEMENT
Tosten Marketing, LLC
This is an agreement for professional marketing services. This agreement is between Tosten Marketing, LLC, a Washington State limited liability company, and the party indicated at the bottom of this agreement, hereinafter, “Client”. The parties enter into this agreement on the date indicated below the signature line at the bottom of this agreement (hereinafter, “effective date”).
- 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.
- Client. Client is an Insurance Agent and/or an Insurance Agency business, contracting with TM for professional online marketing management services.
THEREFORE, in consideration of the disclosure of one another’s Confidential Information, Contractor and Company agree as follows:
- Services. In exchange for the Payment described in Section 2, below, TM hereby agrees to perform professional online marketing, hosting & management services (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 unless discussed and documented, and agreed to by both parties elsewhere, 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”).
- Scope of Tosten Marketing’s Duties. TM shall perform each of the following services in accordance with the guidelines below, provided that Client has purchased such services.
a. Online Review & Analysis / Website Services. TM shall begin building the website immediately (within 10 business days of the commencement of the TM Service). Generally, TM will finalize the initial website build-out within 30 days of the commencement of the creative process, provided that Client has been available and proactive during that time (the creation of a website is a collaborative process requiring the time and commitment of both Client and TM). This timeframe is contingent upon Client’s timely feedback and supplying TM with requested revisions. Provided that Client is working with TM in a commercially reasonable manner, TM shall finish the requested number pages on Client’s behalf, up to the maximum number of pages ordered by Client.
b. Search Engine Optimization: On-Page and Off-Page. TM shall analyze Internet keywords that have the greatest likelihood of promoting Client’s services to Client’s targeted Internet audience. TM shall utilize keyword analytics software to help TM and Client identify the optimal Internet keyword strategies to be employed during the TM Service. TM shall strategically implement the keywords chosen by TM and Client into the website. Lastly, TM shall provide Google’s, Bing’s, and Yahoo’s proprietary systems with a keyword-optimized description of Client’s business (optimized with keywords).
c. Link Building & Press Releases. TM shall place links to the website onto external 3rd party websites. TM shall author press releases (with links leading to the website) on behalf of Client. TM shall publish such press releases on the Internet;
d. Social Media Marketing. TM shall create a business profile for Client on Facebook and/or LinkedIn. TM shall provide fresh content on Facebook, on a weekly basis;
e. Brand/Logo Creation. If requested by Client, TM will create a simple business logo and slogan for Client. Business logos are created using type fonts only. TM will not create artwork for Client;
f. Agency Newsletters, Email Marketing, Blog Content: (i) Agency Newsletters. TM shall create a newsletter for Client and distribute to Client’s customers via email; (ii) Email Marketing. TM shall re-market to Client’s past customers (via email), provided Client has past clients’ email addresses; and (iii) Blog Content. TM shall create two articles per month and publish them on the website.
g. Referral System Creation, Online Review Solicitation, PPC Campaign.
(i) Referral System Implementation. Upon election of Client, TM shall review Client’s referral system. If reasonably possible, TM shall implement the referral system into the TM marketing service media (including the website, newsletters, and social media tools); and
(ii) PPC Campaign (Pay-Per-Click). TM shall set up and manage a pay-per-click campaign through Google Ad-Words. The cost of consulting with the Client and management of the campaign is 10% of the Client’s AdWords pay-per-click monthly budget. The cost of the PPC campaign itself is not included in the price of this agreement. PPC campaigns are paid out to third parties such as Google. If Client selects to use an ad-word/PPC campaign, TM will consult with Client, manage the account, and work with third parties for effective implementation of the campaign. The client is 100% responsible to manage the payment and budget with the 3rd party vendor, such as Google. TM shall not be held responsible if Client goes over-budget on their PPC campaign. One landing page will be created per campaign. Additional landing pages are subject to a $100 fee per page.
- Payment. In exchange for the TM Service, Client hereby agrees to pay TM in accordance with the following:
a. Payment Amount. Client shall pay TM in accordance with the monthly payment schedule that coincides with the TM Service options they’ve selected.
c. 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). TM may permit Client to pay by check.
b. Email hosting is available through Microsoft Exchange. Email cost is $8.00 per user, per month.
d. 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).
e. Form of Payment. TM accepts the following formats of payment: credit cards, debit card, and checks. Payments sent by check via U.S. Mail must be post-dated within 10 calendar days of their Due Date to avoid late fee charges. All Checks payable to:
Tosten Marketing, LLC
18121 NE 125th Street
Redmond, WA 98052
f. 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.
18121 NE 125th Street
Redmond, WA 98052
- Event of Client’s 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, No-Guaranteed Result. 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.
a. 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.
b. 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.
c. 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, 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.
a. 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.
b. 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.
c. 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.
d. 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.
- Preamble. This agreement hereby incorporates the terms provided in the preamble portion of this document (located just above the line “The parties therefore agree as follows”) for the purpose of resolving any ambiguities within this agreement. In the event that a term contained in the preamble is inconsistent with a term in one of the Sections of this agreement, the term found in the Section will control the intent of the parties.
- Client agrees to be truthful with TM, to cooperate with TM, to keep 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.
- Trade Secret/Ownership. Recipient acknowledges that all Confidential Information, including, without limitation, any information developed or derived by Recipient therefrom and all notes, working papers and the like containing or otherwise reflecting Confidential Information, are Discloser’s valuable trade secrets; that Discloser has taken steps that are reasonable under the circumstances to maintain the confidentiality of such information; and that such information derives independent economic value from not generally being known to others. Recipient further acknowledges that Discloser retains all title and ownership in the Confidential Information and any modifications, enhancements, updates, or derivative works thereof and that Recipient acquires no license, rights, or interest, except the limited license to use the Confidential Information for the Business Objective of this Agreement and agrees not to assert any ownership interest of any type in or to any Confidential Information.
- Restrictions on Use/Disclosure of Confidential Information. Recipient agrees to keep the Confidential Information confidential and under access and use restrictions sufficient to prevent copying, use or disclosure thereof in violation of the terms of this Agreement, and further agrees not to: (a) copy, use or disclose any Confidential Information or any tangible or intangible work product containing or referring to such Confidential Information for any purpose except the Business Objective; (b) remove, obscure or alter any notice of patent, copyright, trade secret or other proprietary right from the Confidential Information; or (c) communicate, disclose, divulge, report, distribute, publish, transmit, display, transfer or reveal any Confidential Information to any person or entity except (i) employees or advisors directly involved in the Business Objective who have agreed to be bound by the terms of this Agreement, or (ii) persons who are under a similar obligation of confidentiality. Recipient agrees to be responsible for any breach of this Agreement by any of Recipient’s employees or others to whom it discloses Confidential Information as if they were themselves parties to this Agreement. Under no circumstances shall Recipient disclose any Confidential Information to any person or entity that might reasonably be expected to use such Confidential Information in any manner in competition with Discloser. Recipient shall not disclose the fact that Confidential Information has been disclosed hereunder, or that discussions are taking place in connection with the Business Objective, unless such disclosure is required for the Business Objective. To protect Confidential Information, Recipient shall take reasonable preventive measures as requested by Discloser, and under no circumstances use less care than it uses for its own most sensitive information.
- No Warranty. Recipient understands and acknowledges that neither Discloser nor any of its representatives makes any representations or warranties, express or implied, as to the accuracy or completeness of any Confidential Information.
- Return of Confidential Information. Upon the earlier of termination of the Business Objective, or request by Discloser, Recipient shall return to Discloser all Confidential Information received from Discloser and all copies thereof, unless otherwise agreed by Discloser in writing. In the event documents created by Recipient, such as notes, calculations, working papers, worksheets, drafts, and final accounts contain or otherwise reflect Confidential Information, such documents or the Confidential Information contained therein shall be destroyed.
- 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. Recipient acknowledges that disclosure of Confidential Information in violation of the terms of this Agreement would irreparably injure Discloser, which injury could not adequately be compensated by money damages. Accordingly, Recipient agrees that Discloser 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.