Effective October 28, 2020
These Terms of Service govern MCM’s provision of design and marketing services to Client.
MCM provides its services on either a project- or a retainer- (fixed-term) basis. MCM may add or remove services over time.
Client will grant MCM certain rights and permissions to MCM to perform on Client’s behalf. For certain services, MCM may also require the active cooperation of and/or approval from the Client.
Client is responsible for payment of the purchase of services, including all fees, expenses, and costs.
MCM’s services are provided as is, and MCM makes no promises or guarantees about the services provided. MCM will not be liable for damages or losses arising from Client’s use or inability to use the services or otherwise arising under these Terms of Service.
In the event of cancellation or early termination, Client may be responsible for all fees, expenses, and costs incurred through and up to, the date of cancellation, in addition to any applicable cancellation fees.
These Terms of Service (“Terms of Service”) govern the purchase and provision of the services that My Creative Mark, Inc. (“MCM”) makes available through this website (the “Site” or the “MCM Site”) to its customers ( “Clients,” and each, a “Client” or “You”). These Terms of Service are incorporated into a Client’s agreement to purchase such services (“Service Agreement”) as if set forth fully therein.
MCM provides a variety of print and digital, design and marketing services (the “Services”) to its Clients. The Service Agreement accepted by Client shall specify the scope of Services that Client is purchasing.
MCM may add or remove certain Services over time. In certain cases, MCM may remove and cease providing a Service. If reasonably practicable, MCM will provide Client who has purchased a Service with reasonable prior notice of any such removal or cessation.
MCM may direct Client to certain third party service providers (each, a Third Party Service Provider) to facilitate MCM’s providing of Services to you. Should Client choose to use the products or services of any such Third Party Service Providers, Client acknowledges and agrees that MCM does not have liability or responsibility for the Third Party Service Provider, and that Client is entering into a transaction directly with the Third Party Service Provider, for which MCM does not have control nor input. The availability of the Third Party Service Provider’s site or product does not mean MCM endorses, supports, or warrants the site or product. Client should review carefully the Third Party Service Provider’s policies and practices before engaging in any transaction with such Third Party Service Provider.
To perform the Services, MCM may require information from the Client and the active participation of the Client to review and approve content, among other things. Client agrees to provide the information required by MCM in order to perform the Services, and Client understands that the quality and quantity of the information that Client provides to MCM may impact the effectiveness of the Services. Client also agrees to timely and promptly respond to requests for information and content approvals. Client acknowledges and agrees that, in the event Client fails to timely respond to MCM’s request for approval of any content provided to Client or Client otherwise fails to comply with its obligations pursuant to this subsection 2.1, MCM in its reasonable discretion may deem Client’s silence as acceptance and approval of the content and, if applicable, authorization for and consent to MCM’s publishing and/or printing of the content on behalf of Client, and/or payment for the Services performed for Client. In the event that Client is composed of more than one individual, MCM shall have the right to require Client to designate one individual as the authorized representative on behalf of Client, who shall be responsible for receiving communications on behalf of Client from MCM, and to whom MCM shall have the right to rely upon as having final decision-making authority on behalf of Client.
Client hereby grants to MCM and its authorized personnel a worldwide, royalty-free, fully-paid, non-exclusive, transferable (in connection with an assignment of the Agreement), sublicensable (as necessary to perform the Services) license to use, reproduce, publicly perform, publicly display, publish, distribute, create derivative works of, and otherwise exploit any intellectual property, including content, trademarks, logos, photos, videos, advertisements, information, and information that Client provides to MCM (“Client Materials”) as MCM deems appropriate to perform the Services. MCM will own, subject to any Client Materials therein, all right, title, and interest in and to any materials, content, or other works of authorship created by or on behalf of MCM and used in connection with the Services provided under this Agreement (the “New Content”). MCM acknowledges and agrees that Client will own all right, title, and interest in and to any Client Materials. Following termination of Client’s Services, and provided that all amounts due under the Agreement have been paid in full, then all rights, title, and interest in all New Content will revert to the Client. MCM retains the right to reproduce, publish and display any created content in MCM’s portfolios and websites (including MCM’s social media sites), and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement.
MCM does not allow its Services to be used in connection with any illegal activities or activities that it reasonably deems improper in its sole discretion. MCM reserves the right to take preventative or corrective actions to protect MCM and its users if it determines its Services are being used for improper purposes. Client’s use of the Services is conditioned on Client’s compliance with the rules of conduct set forth in this Section. Any failure to comply may result in termination of the Services. While using the Services, Client is not to: (a) impersonate any person or entity, falsely state or otherwise misrepresent Client’s affiliation with any person or entity, or use or provide any fraudulent, misleading or inaccurate information; (b) defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity; (c) access or use (or attempt to access or use) another user’s account without permission; (d) transmit any software or materials that contain any viruses, worms, trojan horses, defects, or other items of a destructive nature; (e) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any aspect or portion of the Services; (f) “frame” or “mirror” any aspect or portion of the Services; (g) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Services (if applicable); or (h) harvest or collect information about or from other users of the Services. Subject to the limited rights to use the Services pursuant to this Agreement, MCM retains all rights, title and interest in and to the Services, including all related intellectual property contained therein.
Client agrees to pay all fees specified in the Service Agreement. Fees may include, but not limited to, an advance deposit, an initial setup fee, a monthly service fee, and/or a yearly service fee. Client is responsible for providing complete and accurate billing and contact information and for notifying us of any changes to such information. Except as expressly provided herein or expressly stated on a Service Agreement, all sales are final, payment obligations are non-cancelable and fees paid are non-refundable.
By submitting a credit/debit card (“Payment Accounts”) data to MCM, Client authorizes MCM in its complete discretion to submit a financial transaction(s) to Client’s issuing bank for settlement. Client agrees to contact MCM in the event that the Client desires to cancel a recurring charge, prior to the next billing cycle, though cancellation of the recurring charge may not relieve Client of your legal obligation to pay. Should Client fail to contact MCM, Client agrees to indemnify and hold MCM harmless from any losses or damages that Client suffers as a result of a recurring charge. If Client thinks that there is an error on your account, including an incorrect amount or unauthorized transaction, Client agrees to contact MCM prior to the next billing cycle. Client represents and warrants that Client has the legal rights to use the Payment Accounts and hereby authorizes MCM to charge the Payment Accounts for all Services listed on the Service Agreement. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Service Agreement.
Client shall be responsible for paying any applicable taxes related to each Service Agreement. Payments by the Client are due and payable on dates set forth in Service Agreement. If payment is not received by due date, Client shall be assessed a late fee on the overdue amount at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If the amount owing by Client under any Service Agreement is thirty (30) or more days overdue, MCM may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full.
Services provided by MCM may be provided and paid for on either a project basis or on a retainer basis.
The following terms shall apply to Services purchased on a project basis:
Unless otherwise specified in the Service Agreement, Client shall pay the total amount due for the project-based Services upfront, and prior to the commencement of MCM performing the Services.
From time to time circumstances beyond the control of either party may result in the need for project cancellation or termination. In the event of cancellation or termination by Client prior to Project completion, MCM will bill the Client and Client shall pay all fees, expenses, and costs incurred through and up to, the date of cancellation.
Client may be entitled to a full or partial refund in the event that MCM cancels the Services Agreement or MCM fails to deliver the completed project set forth in the Services Agreement, and through no fault or delay of Client. Such refunds to Client shall be subject to MCM’s sole discretion.
The following terms shall apply to Services purchased on a retainer (i.e., fixed-term) basis:
Unless otherwise specified in the Service Agreement, Client shall pay the total amount due for each month of the Services upfront, and prior to the commencement of MCM performing the Services for that month.
The term for MCM’s retainer-based Services shall be twelve (12) months, but subject to the terms of the Service Agreement; the length of term specified in the Service Agreement shall control. The term shall begin on the date that MCM receives the advance deposit due to MCM pursuant to the Service Agreement.
In the event of cancellation or termination by Client prior to the termination of the Term, Client understands that MCM will not reimburse Client for any unused portion of a month for which Client was charged a monthly fee pursuant to the Service Agreement. Client shall be responsible for all fees, expenses, and costs paid for and/or incurred through and up to the date of cancellation or termination. Client shall also be responsible for a cancellation or termination fee of no less than $2,000.00 or the value of 50% of the points that were expected to be completed during the remainder of the term, whichever is greater.
MCM’s retainer-based Services are structured around a points-based system, versus hourly estimates. For instance, each task in connection with a retainer-based Service is assigned a fixed-point total. The points assigned are based on the value that the task adds, rather than simply the number of hours spent. This ensures that you will know what to expect in connection with your Services, regardless of how much time it takes MCM to complete those tasks.
Should any points not be used in a given month within the retainer period, the unused points shall be rolled over to the following month. Should points remain at the end of the retainer period and Client then renews the Services for another fixed term, such points will roll-over to the renewal term. Should points remain at the end of the retainer period and Client elects not to renew the Services for another period, Client may be entitled to a refund of up to the value of 5 points. Client acknowledges that such event is not an indication of MCM’s lack of performance in connection with the Services. Such refund, however, shall be subject to other provisions of these Terms of Service.
Client may be entitled to a full or partial refund in the event that MCM cancels the Services Agreement or MCM fails to deliver the completed project set forth in the Services Agreement, and through no fault or delay of Client. Such refunds to Client shall be subject to MCM’s sole discretion.
Upon termination of Services provided on either a project or retainer basis: (a) MCM may revoke some or all rights granted to Client under the Service Agreement, including Client’s right to use the Services; (b) MCM shall stop performing the Services and may, at its discretion, remove materials from the Internet published by MCM as part of the Services and allow any domain names purchased as part of the Services to lapse; and (c) Client shall immediately pay to MCM all fees that remain due under this Agreement. Sections 2.4 (ownership), 3, 4, 5, 6, 7, and 8 shall survive any termination or expiration of this Agreement.
For certain Services, MCM requires Client’s authorization to act on behalf of Client. Client authorizes MCM to act on behalf of Client or in Client’s name as MCM reasonably deems to be useful or necessary in providing the Services, which may include working with third party service providers in Client’s name.
If the acquisition of domain names is included in the Services, Client will cooperate with MCM as necessary to procure any domain names or similar registrations and will direct the domain names to a location identified by MCM.
If content creation and publishing is included in the Services, Client authorizes MCM to use the information Client provides (the “Client Materials”), as well as any publicly available information that MCM reasonably deems to be useful in providing the Services, to create and publish Web content, including content that represents Client. Client grants MCM the right to modify and publish any or all of the Client Materials or Web content created therefrom on any websites MCM reasonably deem appropriate for the purposes of providing the Services.
Each party to these Terms and Conditions and the Service Agreement (together, the “Agreement”) represents and warrants that such party is duly authorized and has legal capacity to execute and deliver the Agreement. Each party further represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party’s obligations hereunder has been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. Client further represents and warrants that: (a) all information provided to MCM (including the Client Materials) is accurate and truthful; (b) Client has the right to grant MCM the licenses specified in the Section titled “Content Publishing” (if applicable to provision of the Services); (c) the execution and performance of this Agreement does not violate any applicable law or other contract or obligation to which Client is a party or is otherwise bound; and (d) the Client Materials do not infringe the intellectual property rights, including any copyrights, trademarks, trade secrets, right of privacy, or right of publicity, of any person.
THE SERVICES ARE PROVIDED “AS IS” AND MCM SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES AND THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. THIS DISCLAIMER SHALL BE ENFORCED TO THE EXTENT PERMITTED BY LAW IN THOSE JURISDICTIONS THAT MAY LIMIT THE EXCLUSION OF IMPLIED WARRANTIES.
The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications that are outside MCM’s control. MCM is not responsible for any delays, delivery failures or other damages resulting from such problems. MCM does not guarantee the Services will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Client’s equipment, systems or local access services, (3) caused by any failures of Client’s suppliers or vendors, or (4) for previously scheduled maintenance.
The Services and the work product of MCM are sold “as is.” In all circumstances, the maximum liability of MCM, its directors, officers, employees, design agents and affiliates, to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of MCM. Should an error appear in an advertisement or post, MCM disclaims any and all liability. MCM will not be liable for any delays in delivery, and/or non-delivery, in the event of an act of God, network difficulty, electronic outage, hosting outage, and the feasibility or reliability of any third party website, server, or technology. UNDER NO CIRCUMSTANCES WILL MCM BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOST INCOME OR PROFITS, IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF MCM HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
MCM makes no representations or warranties as to whether its work product is compliant with the Americans with Disabilities Act (“ADA”), the Web Content Accessibility Guidelines (“WCAG”) 2.1 published by the Web Accessibility Initiative (“WAI”) other versions of the WCAG, or any other Standard on Web Accessibility. Under no circumstances will MCM be liable for any claims for non-compliance with the ADA or any other claims arising from or in connection to any Services that MCM provides to Client.
The parties agree that MCM will not acquire, assume or otherwise become responsible or liable for any debts, liabilities, taxes or obligations of Client to any person or entity, whether fixed or contingent, known or unknown, choate or inchoate, liquidated or unliquidated, secured or unsecured or otherwise including, without limitation, obligations and liabilities arising as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time before, in respect of anything done, suffered to be done or omitted to be done. Client shall be responsible for all taxes, liability claims, and all other duties of service owed to their customers. MCM bears no liability over instances relating to the business of Client.
As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include, without limitation, the techniques, methods, or strategies MCM uses in connection with performing the Services, personally identifying information and other data (except what has been provided for purposes of publishing content). However, Confidential Information shall not include any information that; (i) is provided by Client and is published or otherwise disclosed, in MCM’s discretion, in connection with the Services; (ii) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (iii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iv) is received from a third party without breach of any obligation owed to the Disclosing Party; or (v) was independently developed by the Receiving Party.
The Receiving Party shall use the same degree of care that it uses to protect the security and confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of the Agreement to any third party without the other party’s prior written consent other than to: (i) its legal counsel and accountants; and (ii) to potential investors, lenders, purchasers of either party’s business, or underwriters in connection with their due diligence in future financings, acquisitions mergers or public offerings of either party.
Client should carefully read MCM’s full privacy policy located at https://www.mycreativemark.com/privacy-policy (“Privacy Policy”) as it is hereby incorporated into these Terms of Service by reference, and governs the treatment of any information, including personally identifiable information Client submits to MCM. Client hereby consents to MCM’s processing of personal data Client provides in connection with the use of the Services according to the Privacy Policy.
MCM may update or modify these Terms of Service from time to time. If MCM modifies these Terms of Service, the modified version will take effect no earlier than ten (10) days from the date of notification to Client. Continued acceptance of MCM’s Services following notification of updates to or modification of the Terms of Service shall constitute Client’s acceptance of the updated or modified Terms of Service. If Client does not agree to the updated Terms of Service after it takes effect, this Agreement shall be terminated, and in accordance with the applicable terms under Section 4 of these Terms of Service. Any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party, and no waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement.
Except as otherwise specified in these Terms of Service, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or indemnification). All notices shall be sent to the addresses set forth on the applicable Service Agreement, which may be updated from time to time upon written notice to the other party.
The Services, other technology MCM may make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Client shall not permit access to or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
MCM shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters. In addition, Client acknowledges that the Services may depend heavily on privacy law in the United States, the various States and Territories, and other jurisdictions. The law can and will change in the future and such changes are outside the control of MCM. MCM cannot predict the impact of future changes in the law. Some legal changes, including but not limited to legislation or judicial interpretation, may render it more difficult or impossible for us to perform the Services offered.
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach. If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
Client may not assign any portion of this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the MCM.
MCM’s relationship with Client is that of an independent contractor, and neither party is an agent or partner of the other. Client does not have, and will not represent to any third party that it has, the authority to act in the name or on behalf of or otherwise to bind MCM in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability or the exercise of any right or power).
This Agreement shall be governed, interpreted, and construed in accordance with the laws of the state of California without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, then the parties agree to first try in good faith to settle the dispute by mediation within 30 days before resorting to litigation. Should mediation be unsuccessful, the parties specifically consent to the local, state and federal courts located in the County of Los Angeles, California. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.
You agree to indemnify and hold MCM, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with your use of the Services or the Site, your conduct in connection with the Services or the Site or with other users of the Services or the Site, or any violation of this Agreement or of any law or the rights of any third party.
These Terms of Service, the incorporated Privacy Policy and the related Service Agreement, together constitute the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent any conflict or inconsistency between the provisions in the Terms of Service and any accepted Service Agreement exists, the terms of such Service Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client generated purchase order or other order documentation (excluding the accepted Service Agreement) shall be incorporated into or form any part of the Agreement, and all such terms or conditions shall be null and void.
