Effective March 2018
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”) and any content (“MCM Content”) made available through the Site to its customers (“Clients,” and each, a “Client”). These Terms of Service are incorporated into a Client’s agreement to purchase such services (“Service Agreement” or “Agreement”) as if set forth fully therein. In the event of any conflict between these Terms of Service and the Service Agreement, the Service Agreement shall apply.
1.1 Products and Services.
MCM provides a variety of print and digital, design and marketing services (the “Services”) to its Clients. Certain Services may consist of MCM’s providing the use of software as a service (“Product”). The Service Agreement accepted by Client shall specify the scope of Services (including Products) that Client is purchasing. Client agrees to comply with any additional terms and conditions associated with the Services. Such additional terms and conditions include but are not limited to any obligations and/or restrictions set forth in the “FAQ” Section in connection with a Service and/or are provided on a Service’s page on the Site (if any and where available).
1.2 Removal or Unavailability of Services.
Certain Services may only be available for a limited period of time. In certain cases (for example, if a Product is discontinued), MCM may remove or cease providing Client with access to certain Products. If reasonably practicable, MCM will provide Client with reasonable prior notice of any such removal or cessation.
2.1 Your Cooperation Required.
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 posting and/or printing of the content on behalf of Client, and/or payment for the Services performed for 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 we deem 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.
2.3 Permitted Use.
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.
3.1 Fees for Services.
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 and/or a monthly 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 otherwise expressly stated on a Service Agreement, all sales are final, payment obligations are non-cancelable and fees paid are non-refundable.
3.2 Credit Card Authorization.
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.
3.3 Taxes, Late Fees and Penalties.
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 an ongoing, month-to-month basis.
4.1 Project-Based Services.
The following terms shall apply to Services purchased on a project basis:
4.1.1 Cancellation or Termination.
From time to time circumstances beyond the control of either party may result in the need for project cancellation. In the event of cancellation by Client, MCM will bill the Client and Client shall pay all fees, expenses, and costs incurred through and up to, the date of cancellation. Client shall not have rights to use any content created by MCM except upon written consent from MCM provided after such notice of cancellation or termination.
Client may be entitled to a full or partial refund in the event that the Agreement be cancelled, if the parties mutually agree to reduce the scope of the Services to be performed by MCM, or MCM fails to deliver the completed project set forth in the Services Agreement, and through no fault or delay of Client.
4.2 Month-to-Month-Based Services.
The following terms shall apply to Services purchased on a month-to-month basis (including, but not limited to: Listing Builder, Reputation Manager, SEOrganic, Visual Visitor, Ghost Blogger, and Crowd Pleaser Services):
The initial term of for each of MCM’s Services by Client shall begin on the date that MCM receives the initial fees due to MCM pursuant to the Service Agreement and continue for one (1) month (“Initial Term”). After the Initial Term, unless Client notifies MCM before the end of the Initial Term (as addressed in subsection 4.2), the Services will automatically renew month to month.
4.2.2 Auto Renewal.
For month-to-month Services, Client understands and agrees that MCM’s Services shall automatically renew at the end of the month, at the same fee as established for the initial term, unless either party provides written notice to the other party of its election to terminate the Service Agreement prior to the end of the then-current term.
4.2.3 Termination or Cancellation.
This Agreement may be terminated by either party for any reason. Client understands that MCM will not reimburse Client for any unused portion of a month for which Client was charged a monthly fee, but that MCM will cancel future auto-renewals of the monthly charge. Notice of non-renewal may be effected by sending a request not to renew to email@example.com.
4.4 Effect of Termination.
Upon termination of Services provided on either a project or month-to-month basis: (a) all rights granted to Client under the Service Agreement, including Client’s right to use the Services, shall immediately cease; (b) MCM shall stop performing all 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.
With respect to SEOrganic and Reputation Management Services, Client authorizes MCM to, among other things, use Client’s information to search the Internet and the “deep Web” using any tools available and to take actions based on the results of these searches that MCM deems reasonably necessary in order to provide those Services. Client also authorizes MCM to use optimization techniques to promote welcome content above unwelcome content on Internet search engines.
5.3 Accounts and Domains.
If content creation and publishing is included in the Services, Client authorizes MCM to act on Client’s behalf in creating accounts with other service providers, including but not limited to accounts on other websites, in Client’s name as MCM reasonably determines is beneficial to providing the Services. 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.
5.4 Content Publishing.
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 this Agreement represents and warrants that such party is duly authorized and has legal capacity to execute and deliver this 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 have 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.
MCM does not guarantee that it will be successful in effecting the removal, the suppression or the alteration, of any specific Internet content that is designated as unwelcome content or that its Services will achieve the result that Client desires. The content that arises in Internet search results will also be affected by the complexity of the internet, the evolving nature of search algorithms and the changing content and activity of the internet. MCM is not Client’s lawyer and does not offer legal advice, nor does this Agreement or the Services create any attorney-client relationship or legal representation. 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.
6.3 Internet Delays.
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.
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.
8.1 Definition of Confidential Information.
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, user names and 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.
8.2 Protection of Confidential Information.
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 this 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 this 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.
MCM may update or modify this Agreement (including Service- or price-specific terms) from time to time. If MCM modifies the Agreement, the modified version will take effect no earlier than fifteen (15) days from the date of notification to Client. Continued acceptance of MCM’s services following notification of updates to or modification of the Agreement shall constitute Client’s acceptance of the updated or modified Agreement. If Client does not agree to the updated Agreement after it takes effect, this Agreement shall be terminated, and in accordance with Section 4 of this Agreement. Except as otherwise described in this Section, 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 this Agreement, 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.
9.3 Export Compliance.
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.
9.4 External Forces.
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. We 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.
9.5 Waiver and Severability.
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.
9.6 Amendments and Assignment.
Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties. Client may not assign any 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.
9.7 Relationship of the Parties.
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).
9.8 Governing Law and Forum.
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.
9.10 Entire Agreement.
These Terms of Service with the related Service Agreement, constitutes 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 of any conflict or inconsistency between the provisions in the body of these Terms of Service and any accepted Service Agreement, 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 this Agreement, and all such terms or conditions shall be null and void.