Overview
These TERMS AND CONDITIONS OF SERVICE AGREEMENT (these “Terms”, or “the Terms”), made and executed by and between Sixth Media, LLC*, a Utah corporation (“Sixth Media”), and [Organization.Name] (the “Client”). By executing this agreement, and in consideration of the mutual promises, and upon the terms and conditions set forth herein, and intending to be legally bound, Sixth Media and Client hereby agree as follows:
Agreement Effective Date:
*Sixth Media maintains the right to hire partners and third parties to complete fulfillment of the Client’s Statement of Work. These partners will henceforth be referred to through the rest of this agreement as part of Sixth Media, LLC.
1.0 Agreement To Terms.
By using our Services, you agree to be bound by these terms and conditions (these “Terms” or “the Terms”). If you don’t agree to be bound by these Terms, you may not use our Services. If you are utilizing our Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” or “your” & “client” or “the client” will refer to that company or other legal entity.
2.0 Definitions
To make these Terms easier to read, we have included several defined terms which you will see throughout. Below is a list of these terms:
“Analytics” means any method of tracking traffic, goals, events, etc through data sources such as: Google Analytics, Google Tag Manager, Google Search Console, Ahrefs, and others we may use or the client may use that they give us permission to use.
“Proper Password Protection” means not utilizing a password that the Client uses for another website or service, that may compromise the security of their data.
“Publisher” means any third party platform not owned by Sixth Media that allows for serving content, reviews, business in videos, or that facilitates the purchasing and distribution of online advertisements such as Google, Bing, Simpli.Fi, or other Social Media.
“SERP” means search engine result page such as Google, Bing, Yahoo, etc that display results based on a user’s query.
“Bots” means a computer program that operates as an agent for a user or other program or service to simulate a human activity such as clicking on links on ads or to a website.
“Services” means the services offered by Sixth Media which include: SEO, website, hosting, Paid, etc based on the agreed and signed Statement of Work.
“Search Engine Optimization “SEO”” means the process of organically generating exposure and traffic to a client’s website through the SERPS.
“Links” means a acquired hyperlinks from one website to another.
“Outreach/ Link Building” means the process of acquiring links or citations from another website or internet listing service.
“Citations” means mentions or listing of the Client’s business name, brand, address, phone number, etc. on another website or listing service such as Google Maps, Yahoo, Bureau of Commerce, etc.
“Toxic links” means links or hyperlinks to other websites that have high levels of spam or bot traffic.
“Organic” means the natural & unpaid process of acquiring links, clicks, impressions, etc. on a search engine, directory, or internet listing service..
“Content” means forms of media such as: Text(s), graphic(s), photo(s), post(s), video(s), etc.
“Paid Campaign” means pay per click (ppc) or pay per thousand impression (cpm) internet advertising displays purchased from the ad exchange through a publisher, used to direct traffic to the Client’s websites, social media or other internet URL.
“Paid Services” means recommended search engine advertising and digital advertising purchases from a publisher designed to manage a Paid Campaign.
“Social Media” means any online presence representing the Client such as Facebook, Twitter, Pinterest, YouTube, Amazon, Reddit, Instagram, LinkedIn, and any other like service.
“Consulting Fees” means a fee equal to an hourly rate of $200 multiplied by the amount of time expended by Sixth Media. Billed in increments of one half of an hour, with a minimum charge of $100 for any consulting services requested by the Client.
“Consulting Services” means research, strategy conferences or other advice provided by Sixth Media at the request of the Client relating to Paid services, website optimization, eCommerce web sales, Google Tag Manager and the like as more particularly set forth in this agreement or any addendum thereto.
“Statement Of Work” means the document(s) agreed upon and signed by the client labeled as ‘Statement of Work.
“Term” means one (1) calendar month measured from the effective date or from the effective date of any permitted amendment to the Statement of Work.
“Late Fee” means a fee equal to ten percent (10.00%) Of any monthly service fee that has not been tendered on or before the past due date.
“Service Fee” has the meaning set forth in the statement of work and any schedules attached thereto and includes, however, is not limited to, fees for Paid services and consulting services.
“Past Due Date” means seven (7) business days after the due date of each month during the term of the service agreement.
“APA document” means “Against Professional Advice” document and is used when a client wishes to continue with an advertising practice against the professional advice of Sixth Media inc.
“A.I”, “Open A.I”, “Chat GPT”, etc. means artificial intelligence or artificial intelligence tool(s) that may be utilized by Sixth Media.
3.0 Scope of Services & Statement of Work
3.1 Statement of Work
In the event of any conflict between these Terms and the Statement of Work, the Statement of Work shall control.
3.2 Scope of Search Engine Optimization
The basic parameters of Search Engine Optimization “SEO” are as follows: Sixth Media will provide organic SEO services through the use of keyword optimization, metadata, content, outreach, citations, etc as agreed upon and outlined in the statement of work, with the purpose of increasing visibility on search engines. Sixth Media has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. The Client’s website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory.
Some search directories offer expedited listing services for a fee. If the Client wishes to engage in said expedited listing services (e.g., paid directories like a premium Yelp account), the Client is solely responsible for the payment for inclusion or expedited service fees.
3.3 Scope of Paid Services and Consulting Services
The basic parameters of the Paid Campaign are as follows: in general, internet users are targeted based on keywords, demographics, interests, behaviors or locations as provided by the publisher. Digital ads are triggered from matching keywords, demographics, interests, behaviors or locations in paid advertising accounts which can be purchased in an auction model from the ad exchange through a publisher. The placement and position of the ads are determined by both the maximum bid payment and the publisher’s perceived relevance of showing the ad to the user. When a user clicks on the ad, a charge is incurred and the user is directed to the Client’s website, Social Media or other designated URL.
3.4 Scope of Web Development
The basic parameters of a web development project are as follows: Sixth Media will build a website for the client per the specifications and parameters agreed upon and outlined in the Statement of Work. Sixth Media may use a website template or parts of a website template, that they can rightfully and lawfully use, as Sixth Media deems necessary to complete the project per the agreed upon specification and parameters as outlined in the Statement of Work. The website may be created on a staging URL, as deemed necessary by Sixth Media. This URL can be owned by the client but Sixth Media reserves the right to create the staging website on a URL of their choosing. This staging site will exist only to facilitate the development of the website and will be removed once the website has been developed according to the specifications and parameters outlined in the Statement of Work. The client will only have access to the staging site in a read-only capacity during the development period.
3.5 Scope of Other Software Development
As required to complete a web development project as per the parameters and scope agreed up and outlined in the Statement of Work, Sixth Media may create custom software. This includes but is not limited to, custom website plugins, API interfaces, custom software integrations, or any other custom software solutions to facilitate a function on a website . All rights and ownership of said software will remain with Sixth Media. The Client may chose to pay Sixth Media to license and utilize the software as outlined or agreed upon in the Statement of Work.
3.6 Service Fee Rate
Sixth Media, unless otherwise stated in this agreement, Service and Setup Fees are subject to revaluation at the end of each calendar year on the anniversary date of the Client signing of this agreement.
3.7 Sixth Media Partners
Sixth Media maintains the right to hire third parties to complete fulfillment of the Client’s Statement of Work. These third parties are referred to through this agreement as part of Sixth Media, LLC.
3.8 Client & or Third Party Changes
Sixth Media is not responsible for changes & adverse results from those changes made to the website, social media, publisher, or any other managed account(s) as specified in section 4.0, by the client or other parties authorized by the client that adversely affect the Services provided by Sixth Media including but not limited to: SEO, Website Development, PPC, Hosting, or other services provided by Sixth Media.
4.0 Responsibilities of Sixth Media
4.1 Links, Outreach, & Citations
Any Links, Outreach, or Citations acquired by Sixth Media are vetted to prevent toxic link(s) to the Client’s items that Sixth Media has been granted access to as defined in section 6.0 Sixth Media is committed to getting helpful links that fulfill the Client’s Statement of Work. Linking to toxic link(s) or getting links from “link farms” can seriously damage all SEO efforts. Sixth Media does not assume liability for the Client’s choice to link to, or obtain a link from any particular website without prior consultation with Sixth Media. Sixth Media does not take responsibility for toxic link(s) that are acquired through the Client, third parties, or by organic means not initiated by Sixth Media.
4.2 Paid Services Features
The Paid Services features shall include, but not be limited to: the implementation of, monitoring of, and consulting with the Client on Paid Campaigns; the selection of optimal keywords, demographics and placements to be used; managing the paid advertising accounts supplied to or created by Sixth Media; the ads and landing pages that are being used in paid advertising efforts relevant to Client’s category of interest; recommendations regarding the optimal use of keywords, demographics, interests, behaviors or locations for optimal performance and
4.3 Use of A.I
Sixth Media reserves the right to use A.I to fulfill the client’s Statement of Work. Sixth Media is not responsible for any inaccuracies, misinformation, defamation, etc. written by the A.I. If the client wishes to opt out of any or all uses of A.I in relation to fulfillment on their Statement of Work the client must verbally or in writing, including but not limited to text, slack communication, email, etc., confirm their refusal for A.I to be used for fulfillment on their Statement of Work.
5.0 Responsibilities of Client
5.1 Responsibility for Paid Ad Content
Sixth Media will facilitate and manage the Paid Campaigns but the Client assumes full and sole responsibility and legal liability for any and all of Client’s content, including but not limited to, (i) all ad content, ad information, ad targeting options and keywords and ad URLs; and (ii) the content, links, landing pages and availability of the web sites.
5.2 Responsibility for Requested Content
Sixth Media may be called upon by the client to write content. Once the Client has approved the content & it has been published on the clients website, blog, or other requested medium, the Client assumes full and sole responsibility and legal liability for said content.
5.3 Representations and Warranties
Client represents and warrants that all Client information provided to Sixth Media is complete, correct and current; and the use by Sixth Media of any Client information will not violate any applicable laws, regulations, code of conduct, or third-party rights (including without limitation intellectual property rights). Client agrees to defend and indemnify Sixth Media for any damages or liability that may arise in any way because of a violation of the foregoing.
6.0 Account Access and Modification
The Client gives Sixth Media express permission to access, manage, modify, edit, and administer some or all of the following analytic(s), social media(s), hosting(s), domain registrar(s), or website(s), tool(s), app(s), or program(s) to fulfill clients Statement of Work. If the client wishes Sixth Media to use any other website(s), tool(s), app(s), program(s) etc to edit, manage, administer or maintain their services with Sixth Media as outlined in the Statement of Work, they must verbally or in writing, including but not limited to text, slack communication, email, etc., confirm permission to access such website(s), tool(s), app(s), or program(s) including but not limited to:
Google My Business (GMB)
Google Ads
Google Analytics (GA), Google Tag Manager (TAG), and/or Google Search Console
Website
Domain Name System (DNS)
Website Host
Citations
Social Media
Yelp
Website Theme(s), PHP, Plugins, CMS
Any other website, tool, app, etc. the client verbally or in writing, including text, slack, email, etc. the client asks us to edit, manage, administer, or maintain.
Any and all other internet and web servers deemed necessary to fulfill contractual obligations.
6.1 Paid Campaign Modification
Unless Client instructs Sixth Media to opt out of certain placements, Client understands, authorizes, and agrees that ads may be placed on any content or property provided by a Publisher. Client gives Sixth Media the authority to act on its behalf with respect to advertising with a publisher, in order to modify keywords, demographics, interests, behaviors, locations, and settings in a timely manner. Clients must provide Sixth Media with timely written notification if they want to stop any specific Paid Campaign. Client understands that it is the publisher’s choice on the timing and manner of any such cancellation. When using the Paid Services, Clients shall not advertise anything illegal or engage in any illegal or fraudulent business practice.
6.2 SEO Campaign Modification
Unless Client instructs Sixth Media to opt out of certain placements, Client understands, authorizes, and agrees that citations, content, backlinks, metadata, etc. may be placed on any content or property provided by a Publisher. Client gives Sixth Media the authority to act on its behalf with respect to advertising with a publisher, in order to modify keywords, demographics, interests, behaviors, locations, and settings in a timely manner. Clients must provide Sixth Media with timely written notification if they want to stop any specific SEO Campaign. Client understands that it is the publisher’s choice on the timing and manner of any such cancellation. When using the SEO Services, Clients shall not engage in any illegal or fraudulent business practice.
7.0 Materials
7.1 Promotional Material Release
The Client agrees that Sixth Media may use the Client’s name, word marks, and non-confidential advertising data in Sixth Media’s promotional activity (the necessary digital/electronic logo files will be provided to Sixth Media upon request)
7.2 Materials Unpaid For
If upon termination there exist any materials furnished by Sixth Media, even when the content was created at the clients request, or any services performed by Sixth Media for which the Client has not paid Sixth Media in full, Sixth Media maintains the right to all content created, until such time as the Client has paid Sixth Media in full. Furthermore the Client agrees not to use any such materials, in whole or in part, or the product of such services, as determined in the agreed upon Statement of Work.
7.3 Confirmation of Material Right of Use
The Client guarantees any elements of text, graphic(s), photo(s), design(s), trademark(s), or other artwork(s) provided to Sixth Media, LLC, for inclusion on the website, publisher, or other managed accounts, above are owned by the Client, or that the Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Sixth Media from any liability or suit arising from the use of such elements.
8.0 Website Security
Sixth Media does not guarantee the client’s site security when the client fails to follow proper password protection, use of plugins, app, or other programs that may expose vulnerabilities, or failure to use 2-Factor Authentication.
8.1 Property of Data
Sixth Media is not responsible for nor owns any of the data a Client’s website gathers. The data gathered by a Client’s website, social media, or other publisher is the property of the Client. Sixth Media is not responsible for the security or any loss of data that is the fault of the Client not following data or website security standards. Upon request Sixth Media will follow any guidelines the Client requests to be in compliance with HIPAA, FHA, GDPR, ect.
8.3 Sixth Media Commitment to Security
Sixth Media is committed to protecting and maintaining security regarding clients information and the data that has been granted access as defined in section 4.0 by using proper password protection methods, 2-Factor Authentication, password manager, other security standards, etc.
9.0 Setup fees and services fees
Client shall pay Sixth Media the Setup Fees set forth herein. Similarly, the Client shall pay the Monthly Service specified in this agreement or any additional addendum on or before the Due Date. Except as otherwise set forth in the Statement of Work, all fees and charges shall be paid in U.S. Dollars. Payment of the Set Up Fee is due, in full, simultaneously with the Client’s tender of the Client’s signed Service Agreement and in no event later than the Effective Date. The Service Fee is due and payable on the Due Date. If payment of the Service Fee has not been received by Sixth Media on or before the Past Due Date, a Late Fee of 10% of the amount due, is due and payable to defray Sixth Media additional administrative costs associated with such late payment. All amounts remaining unpaid after the Due Date, shall accrue interest from the date due until paid in full at a rate equal to 1.5% per month (18% per annum). If the Client requests the delivery of a paper invoice via U.S. Mail and requires the ability to pay such invoices via paper check or purchase order, an additional Invoice fee of 3.5% shall apply. The Client acknowledges that all fees are non-refundable.
10.0 Term and Termination
10.1 Period of Agreement and Notice of Termination
These terms shall be effective as of the signed date outlined on the signed Statement of Work, hereafter known as the ‘effective date’. The billing period will thereafter be either thirty (30) or one hundred eighty (180) days, as stated on the Statement of Work, from the effective date, and shall continue to renew at the end of its duration every thirty (30) days thereafter, until terminated by either party upon not less than thirty (30) days’ notice in writing, either by email or physical letter, given by either party to the other. No period will be prorated and will be paid in full by the client. Services will be rendered until the end of the last thirty(30)-day term. Sixth Media may terminate this Agreement by written notice, either by email or physical letter, to the Client.
10.2 Termination for Non-Payment
The client agrees to follow the billing period and adhere to the agreements as listed in the Terms of Service and/or Statement of Work provided by Sixth Media. Failure to follow any terms as listed in the Terms or the Statement of Works is grounds for termination from the clients services with Sixth Media. The client agrees to not pursue legal action against Sixth Media when the client’s partnership with Sixth Media is terminated for failure to follow the terms of this agreement or the Statement of Works.
10.3 Termination for Cause
Either party to this Agreement may terminate the Agreement if the other party defaults in the performance of any of its material duties and obligations and the default is not cured within thirty (30) days of the receipt of notice of said default, or if the default is not reasonably curable within said period of time, unless the defaulting party commences cure within said period of time and diligently proceeds to cure the default. In addition, either party may immediately terminate this Agreement by giving written notice to the other party if the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction, if the other party makes an assignment for the benefit of creditors, if a trustee, or similar agent is appointed with respect to any property or business of the other party, or in the case of the Client, if the Client materially breaches its obligations to make payment pursuant to this Agreement.
10.4 Termination for Unlawful Practice
When using any of Sixth Media’s services, Clients shall not advertise anything illegal or engage in any illegal or fraudulent business practice. Clients found engaging in illegal activity will have their services immediately terminated with Sixth Media.
10.5 Service Suspension
If payment is not remitted or made by the fifth (5th) day of the billing cycle, Sixth Media reserves the right to suspend all services until the pending payment for services has been paid by the client.
11.0 Confidentiality
Sixth Media and the client shall take all reasonable steps which are necessary or reasonable to safeguard the secrecy and confidentiality of the Confidential information disclosed or provided by the Sixth Media or the client. “Confidential Information” between Sixth Media and the Client means any information in whatever form, and however delivered or communicated, including, without limitation, all data, methods, applications, technologies, techniques, formulas, processes, business plans, marketing plans and strategies, contacts, customer lists, know-how, pricing, information on customer purchases, and all other information of whatever nature, which is understood to be of a confidential nature. Any proposal made to the client or potential client by Sixth Media is the express property of Sixth Media and cannot be shared with other companies, organizations, third parties, etc.
11.1 Confidentiality Exclusions
Information that is rightfully obtained through other means other than the Client or Sixth Media
or enters in the public domain through no fault of either party;
lawfully obtained by either party from a third party which is not in violation of an obligation of confidentiality;
or becomes available to a third party without restriction from the either party,
developed independently by an employee of either party with no access to the received information general skills and experience gained by either party. Confidential Information of a client or Sixth Media shall include any information meeting the above definition which has been disclosed to the client or Sixth Media by any third person or entity with the agreement of either party that it would maintain the confidentiality of such information.
12.0 Representations and Warranties
12.1 Warranties of Service
Sixth Media does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the Services. In no event shall Sixth Media be liable for any damages (including, without limitation, damages for loss of data or profit or due to business interruption or loss in internet visibility) arising out of or in connection with the use of, or inability to use our Services. The liability limitations set forth in the Agreement govern any damage claims or causes of action that may arise. Sixth Media disclaims all guarantees regarding the positioning, levels, quality, or timing of any of the Services outlined in the Statement of Work, including but not limited to the (1) costs per click; (2) click through rates; (3) conversions or other results; and (4) location of ad placements (5) ranking(s) of listings, (6) position of website on SERP(s), (7) position of prominence of or on maps (8) the gathering, maintaining, or quality of reviews, both positive or negative. Client understands and accepts the risk that a third party may generate clicks through improper means, often referred to as traffic or clicks by bots. In regards to Paid Media, Client’s exclusive remedy, and Sixth Media exclusive liability, for suspected invalid clicks is to receive a refund in the form of advertising credits from the publisher, and at the Clients sole discretion. Other means of mitigation may include the use of recaptcha, honeypot, or other apps or website tools that mitigate such traffic. Cost for such measures are the Client’s sole responsibility. Certain keywords and other actions may be prohibited by the publishers editorial guidelines, limitations, privacy policy restrictions, trademark restrictions and ad specification requirements, as examples keywords may be prohibited in regulated industries, such as weapons, pharmaceuticals and gambling.
12.2 Accepting this Agreement
The Client represents and warrants that they have full power and authority to enter into this Agreement and to perform all of their obligations hereunder without violating the legal or equitable rights of any third party.
13.0 Arbitration and Attorney’s Fees
Any action or dispute to enforce any of the terms and provisions contained herein shall be subject to binding arbitration at the written demand of either party hereto upon no less than ten (10) days prior written notice of such party’s intention to seek arbitration and the reason therefore. Any such arbitration shall be before a single arbitrator, under the rules of the American Arbitration Association. All arbitration shall be in the State of Utah. There shall be no discovery in connection with the arbitration, it being the parties’ intention to achieve the maximum cost-saving benefit of arbitration by having all evidence submitted during the course of hearings before the arbitrator. The arbitrator shall apply the law(s) of the State of Utah and shall render a written, reasoned decision. The parties hereto agree to be bound by the award of such arbitration, and judgment upon the award may be entered in any court having jurisdiction thereof. The parties further agree that all costs incurred by such parties with respect to such arbitration, including the arbitrators fees and expenses, and the fees and expenses of attorneys engaged by such parties shall be payable to the prevailing party as determined by the arbitrator.
14.0 General Provisions
14.1 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Utah in the United States of America without reference to conflict of laws principles, except that the U.S. federal law shall govern on matters of intellectual property. Any suit arising out of this agreement shall be brought to a court in the State of Utah.
14.2 Entire Agreement
This Agreement, including its incorporated documents, addendums, and exhibits constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous agreements, understandings, and arrangements between the parties relating to such subject matter. Any modification(s) or amendment(s) to this License Agreement must be in writing and signed by each party.
14.3 General Disclaimer
Except for the above express limited warranties, Sixth Media disclaims all other warranties or conditions of any kind, whether express or implied, including, but not limited to, warranties or conditions of merchantability and fitness for a particular purpose, system integration, and non-infringement of intellectual property rights. Sixth Media does not warrant that the services provided herein will meet Client’s needs; that Client’s operation of the same will be uninterrupted, error free, fault-tolerant, or fail-safe; or that all nonconformities can or will be corrected.