Master Service Agreement

For any Service Agreement, Chatterkick, LLC invests not only its time and resources into creating a Strategy and researching for its client, but also invests in outside vendors to meet its client’s needs. A lot of Chatterkick’s work is, therefore, front-loaded. You, therefore, agree that the first sixty days of the Service Agreement are not terminable.By executing our Service Agreement, you agree to these Terms and Conditions.  Please note that we may change or modify these Terms and Conditions at any time. Changes to these Terms made within the first 60 days of your Service Agreement will not apply to you until the 61^st day of your Service Agreement. For month-to-month Service Agreements, you agree that the changes made to these Terms and Conditions will apply to you on the first day of the month following the publication of the modified Terms and Conditions on our website. Any changes that fall outside of the current scope will be re-estimated and handled outside of our normal operating agreements. In this Agreement, “Chatterkick,” “we,” “us,” or “Agency” refers to Chatterkick, LLC. “You” and “client” refer to the client listed in your Service Agreement.

1. First 60 Days

Chatterkick reserves the right, at any time, to modify, suspend, or discontinue services (in whole or in part) at its sole discretion with or without notice to you. You agree that Chatterkick will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.

Chatterkick further reserves the right, at any time, to revise these Terms or to impose new terms and conditions with respect to access or use of the Site, the Content, or any other matter, in its sole discretion. Any modification to the Terms shall become effective when posted. ANY ACCESS OR USE OF THIS SITE OR ANY CONTENT BY YOU AFTER THE POSTING OF THE REVISED TERMS SHALL CONSTITUTE YOUR AGREEMENT TO SUCH REVISED TERMS. No modification to these Terms shall be valid or enforceable against Chatterkick unless expressly agreed to by Chatterkick in a writing signed by a duly authorized officer of Chatterkick.

2. Assumptions & Understandings

2.1. We work directly with all relevant stakeholders throughout the project to ensure we’re all synced up and working toward the same goals.

2.2. We do a mandatory re-estimation after initial research to determine if findings inform additional scope requirements or other considerations. If we determine after research the scope is larger than anticipated, before moving forward, we’ll ask you whether:

1. 1.  You’d like us to reduce scope to maintain the budget and schedule or
   2.  Increase the budget and schedule to accommodate the scope.

2.3. Any requests for additional functionality or interactions that are not outlined in the initial scope are estimated outside this contract.

2.4 You agree to provide us access to all critical documents, information, assets, accounts, software, and available time to help us to fulfill our contractual obligations.

3. Things That Can Increase Scope

Here is a quick note to highlight the things that can affect our project scope unintentionally. We always do our best to keep all stakeholders informed and involved throughout the process. We’re happy to adjust the project scope to meet your needs. We’d like you to be aware of when that could happen and will alert you as soon as we’re aware

3.1. New stakeholders or voices are added to the project direction (I.e. Execs, Boards, and Legal).

3.2. Additional functionality or platform needs are discovered.

3.3. Approvals, payments, or client deliverables are late.

3.4. Project goals or stakeholders are misaligned.

3.5. Technologies create unanticipated complexity to development.

3.6. Goals or needs change throughout the project.

3.7. The number of monthly posts on the platforms is increased.

3.8. Additional content captures or video projects.

3.9. Crisis management requiring after hours work.

4. What’s Not Included

We want you to be aware of exactly what is covered within your contract. Just as important is knowing what is typically NOT covered by the estimated costs.

These items fall outside of social media playbook and strategy scope, unless specified  in the Service Agreement:

• • Website design/development
  • An social media playbook is not considered a branding document and is not intended to be used as such
  • Media production e.g., video, photos, infographics, scriptwriting, or documents
  • Rogue expenses: travel, out of pocket, materials

These items fall outside of standard website design and maintenance, unless specified  in the Service Agreement:

• • Accessibility testing: All people regardless of ability can use your product
  • Website compliance under the Americans with Disabilities Act
  • Browser testing: Your product looks good in different Operating Systems and browsers and the interactions like buttons and forms work

• • Usability/user testing: Your product works effectively for everyone all the time
  • Acceptance testing: You test whether your product meets business criteria
  • Automated testing: You write tests that your software fails as you build so you can eventually pass them
  • Integrated testing: You test software pieces in modular groups
  • Performance testing: You put pressure on a system to test responsiveness and stability
  • Regression testing: You test that a third party old software works with new patches, changes, integrations or updates

• • Social media management,
  • Editing any changes you may have made directly on the site
  • This service does not include consulting or advice on other aspects of social media.
  • Rogue expenses: travel, out of pocket, materials
  • Additional copywriting or photoshoots

These items fall outside of our standard monthly management, unless specified in the Service Agreement:

• • Social media platform setup
  • Finding and combining multiple business pages or conducting any other social media platform settings or administrative adjustments
  • Asset discovery
  • Video production
  • Interview style or advanced edited videos
  • Advanced editing/video/animation creative
  • 24/7 Social account moderation and weekend response (After-hours or weekend moderation is not included in this standard package but may be available upon request for an additional fee.)
  • Rogue expenses: travel, out of pocket, materials, software
  • Website design and maintenance
  • Crisis communication and PR Events
  • Reporting outside of communication cadence included within scope (A higher volume of reporting can be made available upon request. Since more time and resources will be used, the updated quote will reflect that.)
  • If included within your scope, basic email marketing does not include animations, embedded video, lead for integrations, or advanced list segmenting. Email software is purchased separately.
  • This service does not include consulting or advice on other aspects of social media not covered within the outlined scope.
  • Rogue expenses: travel, out of pocket, materials

These items fall outside of our standard campaign set-up and management, unless specified  in the Service Agreement:

• • Social media platform setup
  • Organic timeline/feed content
  • Photo/video content capture
  • Editing or touch-ups to creative elements provided by client
  • Custom audience data manipulation or formatting
  • Tracking capabilities to be determined by shared access. If we cannot gain access through no fault of Chatterkick, that tracking mechanism will be excluded from reporting.
  • API development or overcoming 3rd party partner integration issues
  • If your industry is considered a Special Ad Category, we will do our best to work within those parameters. However, the platform has the final word on Special Ad Category approvals or denials.
  • We closely monitor campaign performance, however, daily optimization reports are not available.
  • Dynamic ads are algorithm-based and are constantly changing and optimizing per user. For that reason, we’re unable to give previews of every variation of each ad.
  • We cannot guarantee ad approval by each platform. It’s not within our control if a platform rejects ads or takes further action against an ad account or page. Some platforms have limitations or regulations we must follow. We will do our best to work around any roadblocks, but some are out of our control.
  • This service does not include consulting or advice on other aspects of social media not covered within the outlined scope.
  • Rogue expenses: travel, out of pocket, materials

5. Case Study

We would love the opportunity to showcase the process and implementation we’ve used during this project to create an elegant case study we’ll share with our audience. Of course, we’d tailor it in a way that shows off your company’s expertise. You grant permission for us to utilize the work we make for you under this Agreement unless you provide written notice that future work may not be utilized in case studies and advertisements.

6. Copyrights

You guarantee that any Agency Tools or Client Materials (including elements of text, video, graphics, images, designs, trademarks, or other artwork that you provide us for inclusion in the application are either owned by you or that you have permission to use them).

7. Mystery Voices

All stakeholders and decision-makers must be present from the outset of the project and must attend the kickoff meeting. Any input from those not initially involved in the project means we renegotiate our terms. This is a way to protect your timeline and budget since additional voices added to deliverables and reviews inevitably lead to scope creep.

8. Support

We’ll estimate additional support separately and handle it under another agreement.

9. Project Management

Chatterkick uses a number of project management tools to create a simple collaborative environment. You can help us keep deliverables and turnarounds tight by agreeing to use these tools (at no charge to you) to help us record a virtual paper trail. More details TBA, and not to worry: we’ll provide any onboarding you might need.

10. Billing Terms

In exchange for the above services, you will compensate Chatterkick for all research work prior to the project start. In other words, we bill 100% of this research project up front, or as stated in your Service Agreement. We will notify you of any anticipated scope changes and will move ahead with such changes only after receiving your approval. Chatterkick will invoice you monthly. Payment is due within 30 days. You further agree to pay a late fee of 10% of the unpaid obligation for every month such payment is overdue. As an example, if your payment is two months late, your late fee will be 20% of the unpaid amount. Chatterkick reserves the right to issue a grace period of up to 15 days. Your failure to pay an obligation when due will result in the suspension of Chatterkick’s work (See The Pause Clause below) or the termination of Chatterkick’s obligations under the Agreement at Chatterkick’s discretion.

11. Additional Iteration and Design

When you’re ready to keep moving, we can discuss further phases and additional work. Please note: Any additional requests you make that are not outlined within the current scope will be applied once we receive written approval for relevant budget revisions.

12. The Pause Clause

If a client deliverable (i.e.approvals, assets, feedback, or payments) is more than five business days late, we may, at our discretion, put the project on hold. This is to protect both our timeline and your budget. Once we have received the deliverable, the project will be reactivated based upon availability.

Projects that go dormant for longer than 45 days will incur a reactivation fee of 15% of the total contract to resume work at the discretion of Chatterkick.

IMPORTANT: This means that your project could be waiting up to a month to be reactivated.

12.1 Mimic clause

If any deliverable including assets, turnarounds, approvals, or sign-off is delayed, all future agreed-upon deliverable dates will be extended by the same length (e.g., design approval is delayed by two days beyond the expected timeline, the project launch date will be extended by two days). If the project launch date is non-negotiable, an increased fee will apply in order to meet your timeline

13. Transfer of Ownership/Cancellation

Just like a parking ticket, you cannot transfer this contract to anyone else without our permission. This contract stays in place and doesn’t need to be renewed. If for some reason one part of this contract becomes invalid or unenforceable, the other parts of it remain in place. You own all the work you’ve paid for and must pay for all work completed. Staying up to date on payments means you own all the work.

13.1 Kill fee /Cancellation

If you’d like to cancel the project, please send us a written request. For project based or annual services, you will pay an Early Termination Fee equal to 25% of the remaining contract plus any additional work completed and all costs we incurred prior to your change in instructions.

Otherwise, you agree to provide a minimum of 60 days’ written notice to Chatterkick in advance of any intention to cancel or terminate the services provided under your statement of work.

Upon receipt of the cancellation notice, the cancellation of services shall occur on a date that is two full calendar months after the receipt of the notice. For clarity, if a cancellation notice is received on 01/15/2023, services shall continue to be provided through 3/31/2023.

This cancellation notice requirement and timing provision shall apply unless otherwise agreed upon in writing by both parties.

14. Confidential Information

Each party (the “Discloser”) may disclose Confidential Information to the other party (the “Recipient”) in connection with this agreement. The Recipient agrees to (a) maintain the Confidential Information in confidence; (b) protect the Confidential Information with a reasonable degree of care, including employing industry-standard security procedures to prevent unauthorized disclosure of Confidential Information; (c) not use the Confidential Information except in the performance of its obligations under this agreement; and (d) disclose the Confidential Information only to those of its employees and agents who have a need to know the Confidential Information and who are bound by agreement or law to maintain the confidentiality of the information.

15. Intellectual Property

Subject to the Agency’s receipt of payment under the SOW, Agency assigns to the Client all of the Agency’s rights in the Deliverables (other than Agency Tools incorporated in the Deliverables). Upon assignment, Agency grants the Client a nonexclusive, royalty-free, worldwide license to use, modify, display, and otherwise take full lawful advantage of the Agency Tools in connection with the Deliverables. The agency shall provide the Client with a copy of any licenses applicable to any Third-Party Materials included in the Deliverables (the “Third-Party Licenses”). Client shall comply with the terms of such licenses. Client grants Agency a license to use the Client Materials as contemplated by this agreement. You grant Agency a nonexclusive, royalty-free, worldwide license to use, modify, and display Deliverables for Agency to utilize in case studies and marketing. The agency may reuse components of Deliverables (such as non-client images) in subsequent campaigns for any purpose. Raw materials remain owned by Agency. Raw materials may be available for a quote fee upon request.

16. Promotional Rights

Upon Client’s publication of any Deliverable, Agency may publicize depictions of the Deliverables, link to any online content containing the Deliverables, and describe its role in creating of the Deliverables. Agency may (i) publicize the fact that Client is Agency’s client; (ii) describe the nature of its work for the Client; and (iii) subject to any reasonable restrictions imposed by Client, utilize Client’s trade name(s) and trademark(s) in connection with its publicity.

17. Warranties

17.1 Mutual Warranties

Each party warrants that (i) it is authorized to enter into and perform this agreement; (ii) entering into and performing this agreement will not conflict with any other agreement to which the party is bound; and (iii) it will perform under this agreement in accordance with applicable law.

17.2 Client Warranties

Client warrants that, to its knowledge, the Client Materials will not, if used by Agency as contemplated by the SOW, infringe any third-party intellectual property rights. Client is responsible for the accuracy, completeness, and propriety of information concerning your products and services which you furnish to us verbally or in writing in connection with the performance of this Agreement.

Disclaimer. Except as provided in this Section, each party’s performance under this agreement is provided “AS IS” and without other warranty, including without limitation any warranties arising from the course of performance, course of dealing, or usage of trade.

18. Indemnity & Limit on Liability

Each party shall indemnify and hold harmless the other party, its corporate affiliates, and its officers, directors, employees, and agents from and against all obligations of any nature whatsoever (including all reasonable attorneys’ fees and experts’ fees) resulting from a party’s failure to perform in accordance with any of the terms and conditions of this Agreement; provided, however, that (a) the party to be indemnified (the “Indemnified Party”) notifies the other party promptly of any such claim, and (b) such claim is not attributable to any negligent act or omission by the Indemnified Party, its corporate affiliates, or any of its officers, directors, employees, or agents. The other party shall afford the Indemnified Party the opportunity to defend or participate in the defense of such claim. The other party shall make no settlement of an indemnified claim specifically naming or directly affecting the Indemnified Party without the Indemnified Party’s prior written approval. This shall survive the termination of this Agreement.

18.2 Exclusions

Agency is not liable under Section 10(a) to the extent that Claims result from: (i) the negligent or willful acts of an Indemnitee; (ii) Agency’s compliance with the instructions of Client; or (iii) a claim that a Deliverable is infringing where the alleged infringement is due to modifications made by (or on behalf of) Client.

Agency makes no warranty that your website will be compliant with the Americans with Disabilities Act. Regulations of the Americans with Disabilities Act and the corresponding law are complex and change over time. Therefore, in the event we provide website design and maintenance, we recommend you take actions to ensure compliance under the law. Agency further makes no warranty  as to privacy, security, disclosure, cyber liability, and financial regulatory compliance.

In the event by a breach or alleged breach of this Agreement by Chatterkick, your sole remedy shall be for Chatterkick to correct the breach by providing work that meets the Scope of Work. Claims made against us resulting from your Specifications are excluded from our indemnification.

Limit on Liability. Each party’s maximum liability in any action relating to the subject of this agreement is limited to the total fees payable by Client pursuant to the SOW that is the subject of the dispute. This limitation does not apply to damages arising from a party’s gross negligence or intentional wrongdoing, the Conversion Fee, or to attorney’s fees and costs payable pursuant to Section 14(a). Neither party is liable for any claim for lost profits or similar damages, even if foreseeable and regardless of the form of action.

 

19. Non-Solicitation

You understand that Chatterkick invests substantial time, money, and other resources in developing and maintaining its Confidential Information, developing its goodwill and reputation and training its employees, vendors, and independent contractors. You shall not, while services are being performed by Agency and for one year after the last day on which services were provided, solicit, induce, or recruit,  or do business with, directly or indirectly, for yourself or for any other party, Agency’s vendors, and independent contractors. This restriction shall apply only to a person or entity with whom you had contact with during our Services. You further agree not to induce or attempt to induce any supplier, licensee, or other business relation of Chatterkick to cease doing business with Chatterkick, or in any way interfere with the relationship between any such supplier, licensee, or business relation and Chatterkick.

You also understand that Chatterkick invests substantial time, money, and other resources in hiring and managing employees to services for our customers. Accordingly, during the term of this Agreement and for one year after the date the last services were provided, regardless of the reason, you will not (i) recruit, solicit, or hire, or attempt to or aid others to recruit, solicit, or hire, any individual who is an employee of Chatterkick at the end of this Agreement or who was an employee of Chatterkick at any time during the term of this Agreement (“Chatterkick Employee”); (ii) disclose information to any other individual or entity about Chatterkick Employee that could be used to solicit or otherwise encourage Chatterkick Employee to form new business relationships with that or another individual or entity or to otherwise terminate their employment with Chatterkick; or (iii) otherwise interfere with the performance by current or former Chatterkick Employee of their obligations or responsibilities to Chatterkick.  The parties agree that damages resulting from a breach of this Section 19 would be difficult to quantify, but that a reasonable estimate of such damages is [50]% of the total compensation paid to the subject employee in the twelve months preceding the breach (the “Conversion Fee”).  This provision shall survive the termination of this Agreement.

20. Governing Law; Jurisdiction; Venue

South Dakota law governs this agreement, exclusive of its conflict of laws principles.

21. To Start Our Contract

Chatterkick will begin work as soon as we receive an initial payment. We can then schedule our official project start date.

22. Definitions

The following terms have the meanings given:

“Agency Tools” means Agency’s intellectual property (including its designs, methods, software, and trade secrets) that either preexist this agreement or are developed by Agency other than in providing services for Client under this agreement. Agency Tools includes any improvements that are not uniquely applicable to the Deliverables.

“Client Materials” means all documents, information, designs, data, specifications, graphics, logos, trademarks, written content, and other materials provided by or on behalf of Client to be used by Agency in connection with the preparation of or incorporated into the Deliverables.

“Confidential Information” means information that, either, is identified as confidential upon disclosure, or that the Recipient should understand to be confidential under the circumstances; provided, Confidential Information does not include information that: (i) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by the Recipient; (ii) at the time of disclosure is, or thereafter becomes, available to the Recipient on a non-confidential basis from a third-party source, provided, such third party is not and was not prohibited from disclosing such Confidential Information to the Recipient by any contractual obligation; (iii) was known by or in the possession of the Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of the Discloser pursuant to this agreement; or (iv) was or is independently developed by the Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Discloser’s Confidential Information.

“Deliverables” means the final versions of the materials produced and delivered by Agency pursuant to this agreement. Deliverables may include Client Materials, Agency Tools, Third-Party Materials, and Work Product.

“Early Termination Fee” means an amount equal to [25]% of the fees that would otherwise have been charged for the cancelled portion of the project.

“Specifications” are functional or technical specifications for work described in an SOW or that have been otherwise agreed to in writing by Client and Agency.

“Third-Party Materials” means materials belonging to third parties that are incorporated into the Deliverables, including without limitation open source software, fonts, and stock images.

“Work Product” means the materials first created by Agency for Client in the course of performing the services pursuant to this agreement.

23. Miscellaneous

23.1 Taxes

Agency shall pay all taxes on its income and employment taxes for its personnel. Client shall pay any sales, use and value-added taxes.

23.2 Insurance

While providing services, Agency shall maintain in effect policies of commercial general liability insurance with limits of at least $1,000,000 per occurrence and professional liability (errors and omissions) insurance with limits of at least $1,000,000 per occurrence. Upon written request, Agency will provide Client with proof of the insurance coverage required by this section.

23.3 Relationship of the Parties

Agency is an independent contractor and not Client’s partner. The parties are not engaged in a joint venture. Agency’s employees are not to be considered Client’s employees for any purpose. Agency is solely responsible for the means and manner of performing the services.

23.4 Attorney’s Fees

The prevailing party in any dispute regarding the subject of this agreement is entitled to recover its reasonable attorney’s fees, expert’s fees, and costs.

23.5 This Agreement

This agreement (including all SOWs) is the entire agreement of the parties with respect to its subject. All prior and contemporaneous agreements are superseded. This agreement may only be amended by a writing signed by both parties. This Agreement may be signed in counterparts. Each counterpart constitutes an original and all together constitute a single agreement. If any term of this Agreement is determined to be unenforceable, the remainder of this Agreement will not be affected. This Agreement was negotiated by sophisticated parties and will not be construed in favor of or against either party.