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Terms of Use

Terms of Use

MARKETING AGREEMENT

The Parties to this Marketing Agreement are PhysVisible, dba Tribute Alliance Group, Inc (“PhysVisible,” “We,” or “Our”) and the client who signed the Agreement form (“Client,” “You,” or “Your”).  The parties referenced above, and in the capacities so stated, are herein sometimes referred to as the “Parties” and each of them is hereinafter sometimes individually referred to as “Party.”

Recitals:

The Parties enter into this Agreement based upon the following facts, intentions, and understandings:

  1. PhysVisible provides consulting & marketing services for business owners, including branding, website development, SEO, paid search, paid social, email marketing, social media marketing, SMS, and other services;
  2. Client desires to retain PhysVisible, and PhysVisible desires to be retained, for consulting and marketing services as mutually agreed upon by the Parties; and
  3. The Marketing Agreement, including any and all schedules, modifications, and amendments (collectively, the “Agreement”), sets forth the consulting & marketing services being purchased by the Client, the costs for such software and services, and any other relevant details.

NOW, THEREFORE, and in consideration of the premises and of the mutual covenants and promises contained, the Parties agree as follows:

Agreement:

  1. EFFECTIVE DATE.The Agreement shall become effective as of the date of its execution by all of the Parties (the “Effective Date”).
  2. TERM. This agreement will continue for twelve (12) months commencing on the Effective Date, unless terminated sooner pursuant to the terms herein (the “Initial Term”).  The Term will automatically renew for successive periods of six (6) months unless and until either Party provides written notice to the other Party of its intent to terminate the Agreement not less than thirty (30) days prior to the end of the Term or any subsequent renewal period.  The Initial Term and all renewal periods shall be collectively referred to as the “Agreement.”   Upon termination of the Agreement, PhysVisible shall immediately terminate its access to the website assets, social media accounts, and any modules set forth in the Agreement, and provide all access and password credentials to Client in writing within 45 days of termination of the Agreement.

Due to Google Ad’s over delivery policy, Google is able to spend up to two times the daily budget. Google mentions the fluctuations in daily traffic and the impact on spend. Based on this policy you could be billed up to 20% of the overdelivery on the account at the time of cancellation. You can find Google’s policy by going to the following link https://goo.gl/pRMB7P. In addition, all paid search programs created and managed are property of PhysVisible unless otherwise agreed by PhysVisible in writing, and may only be used by Client during the Term for its own internal business purposes and not for the benefit of any third party.

  1. FULFILLMENT.The Parties agree to the following terms:
  • Cancellation. Either party must provide in writing a 30-day notice for intent to cancel services.  A cancellation notice may be delivered via email.
  • Services. PhysVisible shall provide the Client with consulting & marketing services, as set forth in the Agreement (the “Services”). Any timelines provided are estimates and subject to change based on the Client information, responsiveness, and other factors. The Client agrees not to, and will ensure that third parties do not: (a) provide unauthorized access to, or permit the use of, the Services through rental, leasing, resale, or any other means; (b) attempt to uncover the source code of any software provided within the Services by reverse engineering, disassembly, or any other method; and (c) bypass or undermine any security features, technologies, or protective measures implemented within the Services.
  • Payment. PhysVisible will invoice the Client for the Services provided to the Client by PhysVisible pursuant to the invoicing Schedule provided in the Agreement. Payment is to be made in US Dollars.

 

The Client will be billed 100% of the setup fee quoted & first month’s budget upon the Client’s approval of an approved proposal. This will be considered the down payment, and must be received before we activate the program. The second month will be billed on the date of the Marketing Strategy meeting. Payment of estimated monthly fees and costs must be received before the month where the charges are to be incurred, and overages or underages shall be applied to the following month. No payment terms may be changed except as approved in writing by an officer of PhysVisible.

The Client shall make payment in satisfaction of the aforementioned invoices to PhysVisible in good and immediately available funds no later than the due date provided on the applicable monthly invoice issued to the Client by PhysVisible or auto-debited by PhysVisible from the Client’s bank account on the invoice due date to the extent the Client authorizes such action.

If the Client fails to pay any invoice when due, and following a seven (7) day written notice to be provided by PhysVisible to Client, PhysVisible retains the right to pause the rendition of any and all Services to the Client without further notice until all past-due invoices are cleared. All late payments and/or past due amounts are subject to the schedule for failed payments below and shall accrue interest at the rate of ten percent (10%) per annum until all payments required under this Agreement are timely made.

  1. Failed Payment: will result in fees and possible termination of services
  2. Two failed payments will result in a $50 charge
  3. Three failed payments will result in a $75 charge
  4. Four failed payments will result in a $150 charge
  5. Termination of services within 7 days of uncollected payment

 

  • Expedited Work. Projects requested to be expedited will incur a 25% additional cost on the list price per service. Depending on the project date of completion is still not guaranteed.
  • Non-Disparagement. As additional consideration for the promises and covenants set forth herein, the Parties agree not to disparage or otherwise speak of any other Party and its members, directors, officers, employees, agents, attorneys, representatives, predecessors, successors, affiliates, and assigns in any negative manner or in a manner which reflects negatively on the character and reputation of any of the foregoing.
  1. DEFAULT.
  2. Default by PhysVisible. PhysVisible shall be in default if it (a) breaches any of the representations or covenants contained in this Agreement and such breach continues for thirty (30) days after PhysVisible receives written notice from the Client specifying its breach; or (b) engages in willful misconduct or a violation of paragraph 12 herein. Notwithstanding the foregoing, PhysVisible shall not be deemed to be in default hereunder if PhysVisible in good faith commences performance requisite to cure its breach within thirty (30) days after receipt of the Client’s notice (the “Default Period”) and thereafter continuously and with reasonable diligence proceeds to complete the performance required to cure such breach.
  3. Default by the Client. The Client shall be in default if it (a) fails to pay when due any invoice for Services provided to the Client pursuant to this Agreement and such failure continues for seven (7) days after the payment due date on the applicable invoice; (b) breaches any of the other representations or covenants contained in this Agreement and such breach continues for thirty (30) days after the Client receives written notice from PhysVisible specifying its breach; or (c) engages in willful misconduct.
  4. AVAILABLE REMEDIES.In the event that a Party is in default beyond the expiration of all applicable notice and cure periods, the non-defaulting party, at its option may:
  • Terminate this Agreement with thirty (30) days advance written notice to the defaulting Party; and/or
  • Exercise all rights and remedies allowed by this Agreement and applicable law, and shall be entitled to recover reasonable attorneys’ fees at all stages of demand through demand, trial, and at all appellate levels.
  1. COMMUNICATION. All notices required or permitted to be given under this Agreement will be sufficient if furnished in writing (1) to the physical address via certified mail, return receipt requested; (2) regular U.S. mail and email address provided below; or (3) by hand delivery, as follows:

PhysVisible, dba Tribute Alliance Group, Inc

HQ

300 David Street, McKinney, TX. 75069 

 

  1. CHANGES IN THE SERVICES.Without invalidating the Agreement, the scope of Services provided in the Agreement may not be modified for the initial ninety (90) day period from the execution of the Agreement. The scope of Services may be modified from time to time by the mutual agreement of the Parties (a “Modification”) after the initial ninety (90) day period, however, the Modification must be in writing and executed by the Client and the Client Success Manager (“CSM”) subject to the terms further discussed below. Neither Party shall have a claim for additional Services, or changed Services, or changed contract time, unless such Services or extension has been mutually agreed upon by the Parties pursuant to a written notice provided in accordance with paragraph 6 and signed by all Parties as provided in this paragraph. The Client is held responsible for any additional expenses that may arise during the production of the project. PhysVisible requires Client approval (which may be by e-mail) before making any decisions or changes that will result in additional expenses. Client approvals will amend the Agreement fee and cost terms.
  • Pausing Services: The Client must notify the CSM, in writing, at a minimum of two (2) weeks before their next billing cycle; however, the fee for the scope of Services originally agreed upon remains for the full billing cycle. Thereafter, a $200 fee will be applied to pause services for up to six (6) months at which time PhysVisible will offboard the Client. Changes in services cannot be done within the first ninety (90) days of the contract.
  • Upgrading Services: The Client must notify the CSM, in writing, at a minimum of seventy-two (72) hours before their next billing cycle. The Client must complete the addendum prior to the scope of Services being changed.
  • Downgrading Services: The Client must notify the CSM, in writing, at a minimum of two (2) weeks before their next billing cycle; however, the fee for this service still remains for 30 days’ notice. The Client must complete the addendum prior to the scope of Services being changed. Changes in services cannot be done within the first ninety (90) days of the contract.
  • Cancelling Services: The Client must notify thee CSM, in writing, at a minimum of two (2) weeks before their next billing cycle; however, the fee for the scope of Services originally agreed upon remains for the full billing cycle. Cancelation of a specific service will require a setup fee Client requests the same service in the future (if applicable). Changes in services cannot be done within the first ninety (90) days of the contract.
  1. INFORMATION TO BE PROVIDED BY THE CLIENT. In Agreement to facilitate the rendition of the Services, the Client must accurately provide PhysVisible with the “Essential Information” set forth in the Agreement no later than thirty (30) days after the Effective Date. In the event that the Client fails to comply, PhysVisible may, without further notice to the Client, attempt to use its best efforts to unilaterally obtain the information and/or resolve the material issues arising from such failure at a base rate of $150.00/hour (the “Start-Up Efforts”). Prior to PhysVisible undertaking the Start-Up Efforts, PhysVisible shall communicate in writing with Client the nature and type of the Essential Information that has not been provided, and a reasonable estimate of the fees should PhysVisible commence the Start-Up Efforts.
  2. CONFIDENTIAL INFORMATION.PhysVisible or the Client means any nonpublic, proprietary information or technology used in each party’s respective business, and any materials evidencing the same. Confidential Information includes the terms of the Marketing Agreement. Unless approved in advance in writing, neither PhysVisible nor the Client, nor any of their respective employees, will disclose, transfer, distribute or allow access to any Confidential Information of the other party to any of its employees (except those who have a need to know such Confidential Information in Agreement to give effect to the parties’ discussions and mutually intended purpose) or to any third party. Confidential Information will not be used or copied except in accordance with the Marketing Agreement. Each party shall employ the same efforts to protect the other party’s Confidential Information that it applies to protect its own Confidential Information. Such efforts shall be at least commercially reasonable. If either party causes an unauthorized disclosure of the other party’s Confidential Information (hereafter, a “Disclosing Party”), the Disclosing Party shall immediately report the disclosure to the other party (the “Injured Party”) and shall assist the Injured Party in limiting the resulting infringement of its rights. The Disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use and shall bear all costs associated with pursuing those claims. Because the Injured Party whose Confidential Information has been disclosed will not have an adequate remedy in money or damages, such Injured Party shall be entitled to obtain an injunction prohibiting the further breach of the Marketing Agreement and this nondisclosure covenant without the necessity of posting bond, even if otherwise required. Upon the conclusion of any particular discussions between PhysVisible and the Client, each party shall promptly return to the other party all copies of the other party’s written Confidential Information received for such purpose in its possession. Each party’s obligations with respect to the Confidential Information shall survive the completion of the applicable discussions for a period of two (2) years.
  3. COPYRIGHTS & TRADEMARKS. Client represents that any elements of text, graphics, videos, photos, content, designs, trademarks, or other artwork furnished to PhysVisible for inclusion in web pages, social media, etc. are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements (the “Client Identification Materials”). Client agrees to hold harmless, protect, and defend PhysVisible from any claim or suit arising from the use of such Client Identification Materials furnished by the Client.  PhysVisible agrees that no public use or dissemination of Client Identification Materials will be made hereunder unless and until the same has been approved by Client, provided such approval shall not be unreasonably withheld, delayed, or denied in relation to the Services set forth on the Agreement. PhysVisible will return the Client Identification Materials to Client upon termination of the Agreement.
  4. OWNERSHIP OF DELIVERABLES. PhysVisible understands and agrees that all work product prepared by PhysVisible for the Client while performing the Services (the “Work(s)”) shall be considered “work made for hire” within the meaning of Section 101 of the Copyright Act, and that ownership of the entire right, title, and interest in the Work(s) shall be owned by Client.  If, for any reason, the Work(s), or any one or part of them, are deemed not to be a work made for hire, then PhysVisible shall irrevocably assign to Client, all PhysVisible’s right, title, and interest in and to the Work(s), including, but not limited to, all copyrights, trademarks (including the goodwill attached thereto), and other intellectual property rights in the Work(s) in the United States or anywhere throughout the world, together with the right to secure renewals and extensions of such rights throughout the world, for the full term of said rights and any renewal extensions of same that is or may be granted throughout the world.   PhysVisible agrees to execute and deliver to Client all documents that Client reasonably deems necessary to obtain and perfect the interests of Client in the Work(s). This provision specifically excludes PhysVisible’s Ad Accounts, including any data or asset owned under PhysVisible’s Ad Account, for Meta, Facebook, Instagram, WhatsApp, Reddit, Telegram, Twitter, Google, YouTube, LinkedIn, TikTok, Pinterest, Snapchat, Bing, and Yahoo.
  5. CREATIVE WORK.PhysVisible has the right to use all creative work for its own internal marketing purposes. The Client shall provide proof of licenses for all assets given to PhysVisible upon request, for creative direction, and grant the licenses to all new creatives provided by PhysVisible for PhysVisible’s exclusive internal use.

As a Client of PhysVisible, you are solely responsible for any content you provide and the consequences of posting or publishing such content. By submitting content, you confirm and warrant that:

You are the creator and owner of the content, or have obtained the necessary licenses, rights, consents, and permissions required to use and authorize PhysVisible to use and distribute your content. This is in accordance with the licenses granted by you in this Section 3, and as required for the proper functioning of PhysVisible’s services and adherence to these terms.

Your content, and its usage in line with these terms, will not: (i) infringe, violate, or misappropriate any third-party rights, including copyrights, trademarks, patents, trade secrets, moral rights, privacy rights, publicity rights, or any other intellectual property or proprietary rights; (ii) slander, defame, libel, or invade the privacy, publicity, or property rights of any other individual; or (iii) cause PhysVisible to breach any laws or regulations.

  1. COMPLIANCE WITH INTELLECTUAL PROPERTY LAWS.PhysVisible represents that the materials and content created by PhysVisible during the performance of the Services for the Client hereunder shall comply with all valid and applicable intellectual property laws, rules, and regulations.
  2. NO GUARANTEE OF RESULTS.PhysVisible makes no assurances, representations, warranties, promises, or guaranties regarding future earnings, results, or income for the Client or any other third-party as a result of, or in connection with, the provision of the Services. Nor does PhysVisible make any assurances, representations, warranties, promises, or guaranties that the Client will make or fail to lose any specific sum of money as a result of, or in connection with, the provision of the Services. PhysVisible merely acts as a service provider to the Client and shall not be held responsible by the Client for any loss or damages sustained by the Client as a result of, or in connection with, the provision of the Services provided by PhysVisible to the Client.
  3. NATURAL DISASTER.In the event of a natural disaster, including but not limited to, earthquakes, floods, hurricanes, or wildfires, that renders the performance of this agreement impossible or impracticable, either Party may terminate this agreement upon written notice to the other Party. In such a case, neither Party shall be liable to the other for any damages, including without limitation, lost profits, resulting from the termination of this agreement due to the natural disaster. Both Parties shall use their best efforts to resume performance of this agreement as soon as practicable following the cessation of the natural disaster.
  4. CONSEQUENTIAL DAMAGES.Lead Origin shall not be liable to the Client for loss profits or revenue; loss of use or opportunity; loss of good will; cost of substitute facilities, goods, or services; cost of capital; or for any special, consequential, indirect, punitive, or exemplary damages.
  5. KNOWLEDGE OF TRANSACTION.The Parties hereby warrant and represent that before executing this Agreement, they have fully informed themselves of its terms, contents, and conditions (in effect that no promise or representation of any kind has been made by any Party, except as is expressly stated in this Agreement) and that they have had the opportunity to seek and have sought and received the advice of their respective legal counsel (which legal counsel is and has been familiar with their respective positions and business, generally) before entering into this Agreement, and that they fully understand the terms and provisions hereof.
  6. APPLICABLE LAW AND VENUE.This Agreement shall be governed by and construed in accordance with the laws of the State of Texas and the applicable laws of the United States of America. Courts within the State of Texas shall have jurisdiction over any and all disputes arising under or pertaining to this Agreement. Venue regarding any action relating to this Agreement shall be in Harris County, Texas.
  7. NON-SOLICITATION.The Client agrees that during the term of this Agreement and for one (1) year after its termination for any reason, the Client and its officers, agents, directors, and shareholders, if applicable, will not induce any employee of PhysVisible to terminate his or her employment with PhysVisible, or hire or assist in the hiring of any such employee by any person, association, or entity not affiliated with PhysVisible.
  8. NO WAIVER. The provisions of this Agreement may not be changed, discharged, terminated, altered or waived orally, but only by an instrument in writing signed by each of the Parties hereto.
  9. MULTIPLE ORIGINALS. This Agreement may be executed in multiple originals.  In the alternative, this Agreement may be signed in counterpart copies, each of which shall be deemed to be an original document, and all of which shall together be deemed to constitute a single document.  Furthermore, a signed facsimile or scanned electronic copy of this Agreement when signed by a Party and transmitted to the other Party, shall have the same force and effect as delivery of an original.
  10. CONSTRUCTION OF AGREEMENT.This Agreement shall be deemed as having been drafted by all Parties to it so that any rule of construction construing ambiguities against the drafter shall have no force or effect.
  11. HEADINGS. The paragraph headings in this Agreement are for reference purposes only and are not intended in any way to describe, interpret, define or limit the extent or intent of this Agreement or of any part hereof.
  12. SEVERABILITY.Any provision of this Agreement held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Agreement and the effect thereof shall be confined to the provision held to be invalid or illegal. It is expressly agreed by the Parties that each, every, and all terms and provisions of this Agreement are contractual in nature and not merely recitals.
  13. ENTIRE AGREEMENT.This Agreement constitutes the Parties’ entire agreement respecting the matters contained herein and supersedes all previous agreements and discussions, whether written or oral, relating to such matters; provided, however, that PhysVisible may make certain tools and services (“Tools”) available in connection with the services hereunder, the use of which require Client to accept additional terms (“Additional Terms”), which shall apply to the use thereof. Client acknowledges that its users of the Tools shall by use and acceptance thereof bind Client to the Additional Terms. The Parties agree that all other agreements, proposals, purchase Agreements, representations and other understandings concerning the services provided by PhysVisible, whether oral or written between the parties are superseded in their entirety by this agreement. No alterations or modifications of this Agreement will be valid unless made in writing and signed by the parties, except where e-mail approval by Client is authorized above. Except for such Client e-mail authorizations, no attachment, supplement, or exhibit to this Agreement shall be valid unless initialed by an authorized signatory of PhysVisible.As set forth herein, this Agreement represents the final agreement between the Parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the Parties.  Except as set forth herein, there are no unwritten oral agreements between the Parties.  The Parties have not made any representations not stated herein, nor have they relied upon any representation not stated herein in deciding whether to enter into this Agreement.