Terms + Conditions for Small Business Booster Plans
This Contract for Services (the “Agreement”) is made effective as of the acceptance date via Moonclerk by the CLIENT
(“AGENCY”) 6Boro Social LLC of 1 Independence Court, Suite 1002, Hoboken, NJ 07030
(each a “Party” and collectively, the “Parties”).
Whereas 6boro Social LLC is a digital agency, made up of work-for-hire employees trained by Victoria Reitano (founder, CEO and owner of AGENCY;) who assist, manage and create content as needed for client projects;
Whereas CLIENT and AGENCY both desire that AGENCY perform the services and work on the projects described herein and execute digital media strategy, management and publicity management for CLIENT;
Now, therefore, the Parties agree as follows:
SCOPE OF SERVICES. Beginning once the initial invoice is paid in full (the “Services Commencement Date”), AGENCY will provide to CLIENT the following services and any and all services, functions, responsibilities or tasks not specifically described in the Agreement, but which are required for, and are an inherent part of, or a necessary sub-part included within, or that are reasonably required for, the proper performance and delivery of the services (collectively, the “Services”). AGENCY shall comply with all CLIENT policies, manuals, procedures and written instructions to be provided to AGENCY by CLIENT at execution of this agreement, including any and all social media policies, content guidelines, and policies relating to security and/or access to CLIENT Systems (defined below) (collectively, “Client Policies”). In the event such policy is not provided to AGENCY at the time of the execution of the agreement then AGENCY shall be deemed to comply with any such policies so long as AGENCY complies with the best practices. All post, site changes, blogs, content changes/revisions, or modification of any form shall be approved by CLIENT prior to being installed or going public.
The Scope of Services is defined by the package that the CLIENT selects at checkout.
2. PAYMENT. The CLIENT understands that in order to ensure access to AGENCY for the month, payment must be received in advance. Payment shall be made upon checkout and charged on a reoccurring basis monthly. Discovery period begins upon receipt of full payment for initial invoice.
3. REFUNDS. AGENCY does not deliver refunds. AGENCY reserves the right to remedy any dissatisfaction within thirty (30) provided CLIENT delivers clear and relevant feedback in a timely fashion. Should CLIENT wish to terminate agreement early, AGENCY will deliver the remaining hours of work to CLIENT until the retainer is exhausted.
4. TERM. This Agreement will commence on the first payment date accepted via https://6borosocial.com and Moonclerk and continue indefinitely (the “Term”). If CLIENT does not wish to continue, client must provide notice, in writing, fifteen (15) business days’ before the next automatic payment. This Contract may be terminated by either Party at any time on fifteen (15) business days’ notice to the other Party in writing, via email. Delivery dates for projects will be subject to needs of the project and will be established and agreed by the Parties in writing, via email. The Parties may update and change timelines as needed based on feedback given by CLIENT to AGENCY upon mutual written agreement, via email. The Agreement shall be automatically renewed for the same term if it is not cancelled by either party as per the following procedure.
5. WORKS MADE FOR HIRE; ASSIGNMENT. All intellectual property, content, data, software and materials furnished by or on behalf of CLIENT or accessed by AGENCY in its performance of the Services (“Client Property”) are and shall remain the property of CLIENT. AGENCY acknowledges that all original works of authorship, other work product and modifications to or derivatives of Client Property (the “Works”) which are created, conceived, made or reduced to practice by AGENCY (solely or jointly with others) expressly for CLIENT or which are based upon Confidential Information or Client Property and which are protectable by copyright are works made for hire, as that term is defined in the United States Copyright Act. In the event that any such Works are determined not to be works made for hire for any reason, hereby irrevocably assigns, transfers and conveys all rights, title and interest, including all ownership rights, in and to such Works and all intellectual property rights and other proprietary rights therein and thereto in all jurisdictions throughout the world, in perpetuity, in all media, in all versions and elements, to CLIENT and AGENCY shall execute such additional documents as may be requested by CLIENT to evidence CLIENT's ownership thereof. AGENCY also hereby assigns to CLIENT and/or waives any and all claims that AGENCY may now or hereafter have in any jurisdiction to so-called "moral rights" or rights of "droit moral" in connection with such works.
6. WARRANTIES. AGENCY represents and warrants that (a) it shall provide its services and meet its obligations under this Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in AGENCY's community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to AGENCY on similar projects; (b) the AGENCY’s performance of the Services does not and will not conflict with or result in any breach or default under any other agreement or obligation to which it is subject; (c) it shall perform all Services in compliance with all applicable federal, state and local laws, regulations and ordinances, including the regulations of the Federal Trade Commission, and all Client Policies; and (d) except to the extent the Works incorporate Client Property, the Works are AGENCY’s sole and original creations and CLIENT’s use and exploitation of the Works at CLIENT’s discretion will not infringe, misappropriate or otherwise violate the rights of any third party.
7. INDEMNIFICATION. AGENCY and CLIENT shall each indemnify and hold the other harmless from any and all Proceedings, and from any and all losses, judgments, penalties, fines or settlements, arising out of or resulting from AGENCY’s breach or alleged breach of any representation, warranty, or other obligation of AGENCY under this Agreement, including all Expenses; or CLIENT’s failure to provide AGENCY with accurate information or any other actionable conduct by CLIENT’s act or omission. As used herein, “Expenses” means all attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend or investigate a Proceeding, and “Proceeding” means any and all threatened, pending or completed third party claims, actions, suits, arbitrations, alternate dispute resolution mechanisms, investigations, administrative hearings or any other proceedings, whether civil, criminal administrative or investigation.
8. DEFAULT. The occurrence of any of the following shall constitute a material default under this Agreement:
a. The CLIENT’s failure to make a required payment when due.
b. The insolvency or bankruptcy of either party.
c. The subjection of any of either party's property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government AGENCY.
d. The failure to make available or deliver the Services in the time and manner provided for in this Agreement or any other material breach or alleged material breach of the Agreement by AGENCY.
9. REMEDIES. In addition to any and all other rights a Party may have available according to law or equity, if a Party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The Party receiving such notice shall have 30 business days from the Effective Date of such notice to cure the default(s). Unless waived by a Party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
10. FORCE MAJEURE. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either Party's reasonable control (“Force Majeure”), and if the Party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the Party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes or lock-outs. The excused Party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
11. ARBITRATION. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The Parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each Party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonably centrally located between the Parties, or otherwise mutually agreed upon by the Parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the Parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the Parties shall continue to perform their respective obligations under this Agreement.
12. RELATIONSHIP OF THE PARTIES. AGENCY’s relationship with CLIENT will be that of an independent contractor, and nothing in this Agreement should be constructed to create a partnership, joint venture or employer-employee relationship. CLIENT has no authority whatsoever to bind the AGENCY and AGENCY has no authority to bind the CLIENT. Both Parties agree to make no unauthorized promises, representations, warranties or commitments that may be binding on the other. Accordingly, the Parties shall be responsible for, and shall indemnify the other against, payment of all taxes including Federal, State and local taxes (and penalties or fines related thereto) arising out of the activities in accordance with this contract, including by way of illustration but not limitation, Federal and State income tax, Social Security tax, Unemployment Insurance taxes, and any other taxes or business license fees as required. If applicable, CLIENT will report amounts paid to AGENCY by filing Form 1099-MISC with the IRS, as required by law.
13, SEVERABILITY. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
14. AMENDMENT. This Agreement may not be modified or amended except in a writing that is manually signed by both Parties.
15. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to its conflict of laws principles. Any legal action or proceeding with respect to this Agreement or any document related thereto shall be brought in the courts of the State of New York located in New York County or of the United States of America for the Southern District of New York, and, by execution and delivery of this Agreement, each of the Parties hereto hereby accepts for itself and in respect of its property generally and unconditionally, the exclusive jurisdiction of the aforesaid courts. Each of the Parties hereto hereby irrevocably waives any objection, including, without limitation, any objection to the laying of venue based on the grounds of forum non conveniens, which it may now or hereafter have to the bringing of any such action or proceeding in such jurisdictions.
16. LEGAL COUNSEL. All Parties hereto acknowledge that they have had the opportunity to seek the advice of legal counsel in connection with the execution of this Agreement and that they understand its content and legal effects.
17. ASSIGNMENT. AGENCY may not assign this Agreement, or any rights under this Agreement, or delegate or sub-contract any obligations, duties or part of the Services under this Agreement, in whole or in part, by operation of law, or otherwise, including by merger or acquisition, without the prior written consent of CLIENT, which may be withheld in CLIENT’s sole discretion. In the event that AGENCY does use subcontractors, AGENCY shall (a) ensure all of its subcontractors’ compliance with all of the terms and conditions of this Agreement; and (b) be solely liable to pay subcontractors in connection with the Services and for the acts or omissions of such subcontractors. Nothing in this Agreement shall be construed to create any contractual relationship between CLIENT and any subcontractor. CLIENT may freely assign and otherwise delegate the Agreement in whole or in part, and its rights, duties and obligations, or any part thereof, to any affiliate or to any third party, whether by operation of law or otherwise. In the event of such an assignment or delegation, CLIENT will provide written notice of the assignment or delegation to AGENCY. Any purported assignment by AGENCY in contravention of this Section shall be void and without effect.
18. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the permitted successors and assigns of each of the Parties.
19. COUNTERPARTS. This Agreement may be executed in any number of counterparts each of which shall be an original and all of which taken together shall constitute one and the same agreement. The execution of this Agreement may be effected by facsimile signatures (including, but not limited to, signatures transmitted by pdf/electronic mail), all of which shall be treated as originals.
20. NOTICE. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or via email, to the address set forth below or to such other address as one party may have furnished to the other in writing.
Email for AGENCY: email@example.com
Email for CLIENT: to be submitted via on-boarding form
21. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
22. CONFIDENTIALITY. AGENCY agrees that AGENCY shall not, directly or indirectly, at any time during AGENCY’s performance of the Services or anytime thereafter, disclose any Confidential or Proprietary Information relating to CLIENT to any third party, or use any such Confidential or Proprietary Information, in any manner whatsoever, for AGENCY’s own benefit or for the benefit of any third party, and acknowledges that CLIENT would be irreparably damaged if AGENCY violated the provisions of this Section 23. AGENCY acknowledges and agrees that in the event of any breach, or threatened breach, of this section by AGENCY, CLIENT shall be entitled to seek injunctive relief and may obtain a temporary order restraining any threatened of further breach. “Confidential or Proprietary Information,” as used in this Agreement, means all information, data and knowledge relating to CLIENT and its subsidiaries and affiliates (if any), whether written or oral, including, without limitation, information relating to planned or existing businesses or business initiatives; contacts, customers, distributors, and licensees; profits and other financial information; information relating to processes and technology; information relating to concepts, ideas, designs, patents, trademarks, copyrights and trade secrets; confidential information, software and material of third parties with whom CLIENT conducts business; and information and data about CLIENT’s customers, employees and personnel. Notwithstanding the foregoing, "Confidential or Proprietary Information" does not include (a) information that becomes generally known to the public through no fault of AGENCY, except for any personally identifiable information (“PII”), which shall remain confidential even if publicly available or (b) information published or disseminated by CLIENT publicly in the ordinary course of business without restriction. If AGENCY is required by law to disclose Confidential or Proprietary Information, AGENCY shall promptly notify CLIENT in writing in advance of such disclosure, and provide it with copies of any related information so that CLIENT may take appropriate action to protect the Confidential or Proprietary Information. Without limiting anything in this Agreement, the obligations to maintain confidentiality and the restrictions on use, disclosure, duplication, protection and security of Confidential or Proprietary Information shall survive the rescission, termination, or completion of this Agreement and remain in full force and effect until such Confidential or Proprietary Information, through no fault of AGENCY, becomes part of the public domain. The Parties anticipate that no PII of a Party will be accessed, shared or otherwise processed by either Party in connection with this Agreement. If the Services change and access to, sharing or other processing of PII is required, the Parties will enter into a privacy and data security appendix to this Agreement setting out the terms related thereto.
23. RETURN OF RECORDS: Upon termination of this Agreement, AGENCY will return to CLIENT all records, notes, documentation, social media account passwords, assets and other items that were used, created, or controlled by AGENCY during the term of this Contract, including, without limitation, all Client Property and Works, in whatever stage of completion. Both Parties agree that any and all confidentiality and non-disclosure obligations in this Agreement shall survive the termination, revocation, or expiration of this Agreement
24. CLIENT Systems: Client may furnish AGENCY personnel with access at CLIENT facilities, to CLIENT’s systems or social media accounts or the systems of third parties, including licensed software of other third parties (collectively, “CLIENT Systems”) when and to the limited extent necessary for the performance of Services under this Agreement. CLIENT shall limit all access to CLIENT Systems, whether provided at a CLIENT facility or through remote access, to such AGENCY personnel approved in advance in writing by CLIENT and to such access as is reasonably necessary in connection with the performance of Services, only for the minimum duration necessary to perform the relevant Services, and as otherwise may be limited by the terms of agreements with third parties (to the extent any relevant requirements have been disclosed in advance by CLIENT to AGENCY). It is the intention of the Parties that no AGENCY personnel will have “standing access” to CLIENT Systems (i.e., continuing access whether or not the individual is actively engaged in the performance of Services). CLIENT shall make such CLIENT Systems available on an “AS IS, WHERE IS” and “AS AVAILABLE” basis, with no warranties whatsoever. CLIENT may terminate any and all such access at any time and upon such termination, such AGENCY personnel shall immediately cease all access and use of such CLIENT Systems. AGENCY shall comply with, and shall ensure its personnel comply with, all agreements with third parties and all CLIENT Policies prohibiting or restricting remote access to CLIENT Systems.
25. NON-DISPARAGEMENT. CLIENT shall not make any false, disparaging, or derogatory statement in public or private regarding AGENCY, its employees, independent contractors, or agents. AGENCY shall not make any false, disparaging, or derogatory statements in public or private regarding CLIENT and its relationship with AGENCY.
26. CLIENT RESPONSIBILITY. CLIENT accepts and agrees that CLIENT is equally responsible for its progress and results from the Services. AGENCY agree to use best efforts, knowledge and expertise to bring about the desired result through the use of the digital marketing tools and to assist and guide CLIENT in the continuing application thereof. AGENCY makes no representations as to the results to be expected from the services offered herein. CLIENT understands that it is outside the AGENCY’s control to guarantee a result from the digital marketing tools.
27. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the Parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the Parties.