SERVICE AGREEMENT
THIS SERVICE AGREEMENT (this “Agreement”) is entered into by and between your company listed in your a SEPARATELY EXECUTED AGREEMENT, SCOPE OF WORK, OR PROPOSAL (“Proposal”) with Mosaic eMarketing, LLC (“Mosaic”). This Agreement is entered into on the Effective Date (as defined in the Proposal). Mosaic and Client may be referred to herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, Mosaic has agreed to provide the SERVICES ENUMERATED IN THE PROPOSAL (the “Services”) to Client in accordance with, and upon Client’s assent to, the terms and conditions set forth in this Agreement as well as those set forth in the Proposal and any other agreement or invoice entered into by Client relating to the provision of the Services by Mosaic.
NOW, THEREFOR, in consideration of Mosaic’s agreement to provide Client with the Services along with any other promises and commitments set forth herein, the Parties acknowledge, agree, covenant, represent and warrant as follows:
- This Agreement shall be in full force and effect as of the Effective Date and shall continue for as long as Mosaic provides the Services to Client.
- The terms and conditions of this Agreement are subject to periodic review and update by Mosaic in its sole discretion, which updates shall become effective as of the date posted, published or otherwise indicated by Mosaic. Continued use or access of the Services by Client following an update or amendment to this Agreement shall constitute Client’s consent to such update or amendment.
- Client shall obtain informed written consent from the owner and user of each telephone number and email address it provides to Mosaic and/or to which messaging services are provided.
- Client shall not use or access the Services in any unauthorized manner or for any improper purpose and shall, at all times and in all ways, comply with all federal, state, and local laws, regulations, ordinances, or any industry or administrative rules including, but not limited to, the Telephone Consumer Protection Act or similar federal or state laws.
- The Services shall be provided “as is” and “as available” and Client’s use or access of the Services shall be at its sole risk having acknowledged and agreed that Mosaic makes no representation or warranty, express or implied, whether arising from statute, custom, course of dealing or trade usage, with respect to the Services and specifically disclaims all express warranties as well as any and all statutory or implied warranties or conditions including, without limitation, warranties of merchantability and/or fitness for a particular purpose. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (A) CLIENT ACKNOWLEDGES AND AGREES THAT MOSAIC HAS NOT MADE ANY REPRESENTATIONS OR GUARANTEES REGARDING THE EXPECTED BENEFITS, PROFITABILITY OR EFFECTIVENESS OF THE SERVICES; AND (B) MOSAIC HAS NO CONTROL OVER THIRD PARTIES, INCLUDING SEARCH ENGINE RANKING COMPANIES, SOCIAL MEDIA OUTLETS, REPORTING TECHNOLOGIES, HOSTING COMPANIES, WEB TECHNOLOGY VENDORS, BRAND REPUTATION OR PUBLIC RELATIONS OUTCOMES AND FULLY DISCLAIMS ALL LIABILITY FOR ANY ACTIONS TAKEN BY ANY THIRD PARTIES. CLIENT REMAINS RESPONSIBLE FOR ALL ASPECTS OF LEGAL COMPLIANCE WITH RESPECT TO ITS SITES AND MOSAIC ACCEPTS NO RESPONSIBILITY FOR ANY FAILURE OF A SITE TO MEET ANY LEGAL REQUIREMENT. Furthermore, Mosaic makes no promises, express or implied, that the Services shall not constitute an “automatic telephone dialing system” or similar system if challenged under the Federal Telephone Consumer Protection Act or similar federal or state laws and/or that data will not be lost or corrupted by Client’s use or access of the Services.
- Client agrees that the Services do not include integrations, or custom development work, unless specifically stated in the Proposal. Mosaic will make a good faith effort to integrate the Services with technologies and software used by the Client, but cannot guarantee that these solutions will be included, or that they can be supported as part of the Proposal unless they are specifically named as deliverables in the quote in the Proposal.
- Client is responsible for maintaining and securing access to key third-party profiles related to their business; including but not limited to, Google Ads, Google My Business, Google Analytics, Facebook, Bing Ads, Website Hosting, DNS, etc. Mosaic will make a good faith effort to work with the Client to secure access to pre-existing accounts for third-party web properties. Should the Client not have access already, it may not be possible for Mosaic to help the client secure such access. Mosaic will also work in good faith to solve any restrictions, account blocks, bans (for financial, platform policy, or other reasons), and various other issues that may arise between the third-party account and the Client; but no guarantees are expressed or implied in our ability to resolve these issues on a specific timeline. Access, or account suspension issues may cause a delay in the timeline of deploying marketing services.
- The Services may involve the use of third-party cookies, pixel tags, web beacons, technologies, and other relevant tags and data sources (collectively, “Tags”) to collect and use industry standard user information (which may include IP addresses and other device or personal identifiers) gathered with respect to one or more of Client’s owned and/or operated or affiliated websites (collectively, the “Sites”). Because Client is responsible for privacy policies on the Sites, in providing the Services involving Tags, Mosaic relies on Client to ensure that data collection through Tags and data usage complies with all applicable laws, rules, and regulations, including but not limited to applicable data/privacy laws, policies, self-regulatory principles, guidelines, rules, and codes of conduct to which third parties providing services, platforms, and data as part of the Services are bound, the California Privacy Rights Act, the Virginia Consumer Data Protection Act, the Connecticut Data Privacy Act, the Colorado Privacy Act, the Utah Consumer Privacy Act, Nevada’s SB-220, the Iowa Data Privacy Law, the Indiana Data Privacy Law, the Tennessee Information Protection Act, the Texas Data Privacy and Security Act, Florida’s Digital Bill of Rights, the Montana Consumer Data Privacy Act, the Oregon Consumer Privacy Act, the Delaware Personal Data Privacy Act, the European Union’s General Data Protection Regulation, or any other data privacy law imposing restrictions on the use, storage, disclosure, or collection of information, the Health Insurance Portability and Accountability Act, the Gramm-Leach Bliley Act, the Children’s Online Privacy Protection Act, the Video Privacy Protection Act, the Telephone Consumer Protection Act, and similar state and federal laws including, without limitation, provisions of the foregoing dealing with SMS/MMS mobile message marketing (collectively, “Privacy Laws”). Client represents, warrants, and covenants that, with respect to each website, mobile app, or other digital property owned, operated, and/or controlled by Client, Client does, and throughout the term of this Agreement will: (i) prominently display and comply with a privacy policy that (A) fully, accurately, and clearly discloses that third parties use or may use cookies or other code or technology to collect user information on the Sites, and ads or other content may be served on third party sites based on user information collected on the Sites; (B) conspicuously enables or links to a page that enables the user to opt out of having data used for online behavioral advertising; and (C) otherwise complies with all Privacy Laws. Furthermore, where required by Privacy Laws, Client will deploy appropriate notices and functionality to obtain all authorizations and consents prior to the placing and using of Tags on the Sites, and Client shall provide and/or cooperate with Mosaic to provide any required opt-in or opt-out mechanisms consistent with Privacy Laws for the purpose of providing users of the Sites with information and choices. Client further represents, warrants, and covenants that it will not use the Tags on Sites that could lead to the collection through the Tags of sensitive information, including information that reveals the health, race or ethnicity, political affiliation, religion, or sexual orientation of Site users, or information that is regulated under applicable Privacy Laws. Client hereby authorizes Mosaic to access and use all data, content and/or information of Client’s clients (collectively, “Client Data”) for the purpose of providing the Services. Client represents and warrants that the Services, and access, use, and sharing by Mosaic, is permitted by law and conforms to Client’s own contractual obligations and privacy notices. Mosaic will use commercially reasonable efforts to maintain the confidentiality of Client Data accessed by Mosaic. However, notwithstanding any other provisions in this Agreement, Mosaic may share user information collected through the Tags for purposes of online behavioral advertising.
- Client represents and warrants to Mosaic that it owns, licenses, or otherwise has all rights to the Client Data submitted or made available by Client to Mosaic necessary for it to provide the Services (including, but not limited to, all text, data, still pictures, illustrations, graphics, designs, other visual and/or audio materials, trade names, trademarks, service marks and metadata, and including all data, content, information, items or materials provided or made available to Mosaic). Client further represents, warrants and agrees that the Client Data (i) contains no defamatory, libelous, disparaging, illegal or fraudulent material, and (ii) does not violate or infringe any right of privacy or publicity, or any intellectual property, proprietary or other rights of any third persons.
- CLIENT REPRESENTS AND WARRANTS TO MOSAIC THAT CLIENT DATA, ACCESS PROVIDED TO CLIENT DATA, AND USE OF CLIENT DATA IN CONNECTION WITH THE SERVICES, COMPLIES WITH ALL LAWS INCLUDING, BUT NOT LIMITED TO THE, PRIVACY LAWS AND SHALL NOT GIVE RISE TO A CLAIM BY A THIRD PARTY OR GOVERNMENTAL REGULATORY AUTHORITY FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, FRAUD, MISREPRESENTATION, DEFAMATION, TRADE DISPARAGEMENT, PRIVACY VIOLATIONS, VIOLATION OF ANY LAW, RULE, OR REGULATION, OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS. Client agrees to protect, defend, hold harmless, and indemnify (collectively “Indemnify” and “Indemnification”) Mosaic, its parents or subsidiaries, and its and their respective successors, assigns, owners, members, shareholders, directors, officers, employees, agents, attorneys, affiliates, and representatives (collectively, “Indemnified Parties”), from and against all claims, demands, actions, suits, damages, liabilities, fines, losses, settlements, judgments, costs, and expenses of or by a third party or imposed by a governmental agency, including but not limited to reasonable attorneys’ fees and costs (collectively, “Claims”), actually or allegedly, directly or indirectly, arising out of or related to any breach or alleged breach of any and all applicable Privacy Laws. Client also agrees to Indemnify the Indemnified Parties against (1) any breach of any representation or warranty of Client contained in any agreement that may constitute a breach of Privacy Laws; (2) any breach or violation of any covenant or other obligation or duty of Client under any agreement between the parties or under applicable law, including but not limited to the Privacy Laws; and (3) any third party Claims which arise out of, relate to or result from any act or omission of Client which results in an actual or alleged breach of the Privacy Laws. Client agrees to Indemnify the Indemnified Parties in each case whether or not caused in whole or in part by the negligence of Mosaic, or any other Indemnified Party, and whether or not the relevant Claim has merit.
- Unless specifically agreed in writing between, Client hereby acknowledges and agrees that Mosaic does not produce, and is not responsible for the production of, Americans with Disabilities Act (“ADA”) compliant websites or other deliverables in any way and has made no representations or warranties (and specifically disclaims any representations and warranties) that any websites, webpages, or other deliverables will be ADA compliant. ADA compliance rests solely with Client and Client agrees to indemnify, defend and hold Mosaic harmless against any liabilities, costs and expenses arising from the allegation of any non-compliance claims. ADA services may be separately and specifically contracted from Mosaic, which includes third-party software for features intended to assist individuals with disabilities that help achieve compliance; provided, however, this software is not warranted in any manner by Mosaic and it does not guarantee compliance with ADA.
- Client authorizes Mosaic, as well as any of its subsidiaries, affiliates, or third-parties with whom Mosaic contracts or engages, to act as a limited agent for Client in order to provide the Services.
- To the maximum extent permissible under applicable law, Mosaic shall not be liable for any act or omission whatsoever relating, in any way, to its provision of, or Client’s use or access of, the Services including, without limitation, the sending of any text message by or on behalf of Client or any marketing or development services provided by Mosaic. In the event Mosaic is found liable for any act or omission relating to Mosaic’s provision of the services, then Mosaic’s aggregate liability shall be limited to the lessor of $25,000 or the actual amount of fees paid to Mosaic by Client in exchange for the Services during the previous six (6) months prior to the date on which any claim or cause of action giving rise to such liability first accrued, whichever is lesser. IN NO EVENT SHALL MOSAIC BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT MOSAIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- When engaged in business activities related to Mosaic, Mosaic expects the Client to treat Mosaic employees, with respect. This includes, without limitation, interactions, communications, and collaborations, equal treatment, professional conduct, and a discrimination-free environment. Mosaic reserves the right to cancel a relationship with a Client, in Mosaic’s sole and absolute discretion, with as little as 24-hours written notice to a Client in the event of EGREGIOUS TREATMENT of Mosaic employees. Egregious Treatment of Client’s Treatment of Mosaic Team Members (employees) are defined in the sole and absolute discretion of Mosaic. In the event that Mosaic chooses to continue to provide digital marketing services, we reserve the right to direct communication via our home office point of contact(s).
- Client shall indemnify, defend, and hold harmless Mosaic, and its owners, members, directors, officers, employees, agents, representatives, insurers, successors and assigns from and against any and all liability, damages, or claims including, without limitation, any direct, indirect, special, liquidated, punitive, consequential, or incidental damages, cost, or fees (including attorney’s fees), however caused, and whether based upon contract, tort, or any other legal or equitable theory of recovery arising out of or relating in any way to any claim, suit, action, or other legal or administrative proceeding brought in connection with the provision of the Services including, without limitation, (i) the sending of any text message by or on behalf of Client, (ii) the sending of any email by or on behalf of Client, (iii) non-compliance with ADA or WCAG of the Client’s web-site, (iv) non-compliance of the Client with Anti-SPAM, privacy, tracking, or cookie legislation, (v) non-compliance with HIPAA, PCI, or data storage standards or legislation, (vi) data or security breach, (vii) non-compliance with any Privacy Law, and/or (viii) any other liability, damages, or claims related to the Services or any other services that may be provided to Client by Mosaic. Furthermore, in the event that any claim or action is brought against Mosaic, it shall have the right to select its own attorney, representation and/or counsel, which shall be paid for by Client.
- In such cases where Mosaic is invoicing Client for Services that include call tracking, call tracking minutes shall be tracked and calculated by rounding each call up to the nearest minute and then summing the minutes, in a way consistent with that of the call tracking service provider.
- In such cases where Mosaic is providing MEDIA BUYING SERVICES (defined as managing, ordering, or “Flighting” advertisements or other commercial messages across a wide variety of advertising formats, including, but not limited to; Connected TV Advertising, so-called “Over-The-Top” or OTT Advertising, Programmatic Advertising, Traditional TV Advertising, Radio Advertising, Newspaper Advertising, Outdoor Advertising (including but not limited to Billboard and Digital Signage). Client acknowledges, agrees, and understands that there are “per-unit” fees that are implicit in the fulfillment of all Media Buying Services. Client acknowledges, agrees, and understands that these fee structures will vary based on the nature of the Media Buying Service, and that rather than decomposing all of the fees, costs, and commissions imposed by media outlets, display platforms, so-called display side vendors, data and inventory sellers/resellers, and advertising brokers and/or managers – Mosaic will provide a single, all-inclusive per-unit price for all Media Buying Services. In this way, there shall be no “hidden fees” imposed in addition to the all-inclusive per-unit price reflected in the Proposal. The per-unit rates in the Proposal shall be the full and complete price or fee structure.
- In the event that an ACH (Automated Clearing House) transaction is returned, canceled, or otherwise not successfully processed due to insufficient funds, incorrect account information, or any other reason, the Client shall incur a fee of $34. This fee is intended to cover administrative and processing costs associated with the failed transaction.
- Client represents and warrants that it has all necessary right, power, and authority to enter into the Agreement and to perform the obligations and duties as set forth herein. Client also represents and warrants that its execution and delivery of this Agreement or its performance hereunder does not and will not conflict with, violate, or result in a breach of any other agreement, judgment, order, stipulation, or decree by which Client is bound.
- This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Ohio, without regard to choice of law. Furthermore, any claim, suit, dispute, or other legal proceeding arising under this Agreement and/or between Mosaic and Client shall be brought exclusively before a state or federal court of competent jurisdiction located in Cleveland, Ohio, and Mosaic and Client hereby expressly and irrevocably submit to the jurisdiction thereof for the resolution of all such claims, suits, disputes, or proceedings and agree that venue is proper exclusively in those courts.
- Client voluntarily, knowingly, irrevocably and unconditionally waives any right it might have to trial by jury of any and all claims, demands, costs, expenses and causes of action, of any kind or description whatsoever, on account of or arising out of this Agreement. Without limiting the scope of this waiver, Client agree that any action to enforce or defend any right under this Agreement, under any federal or state law and/or regulations shall be decided by a court of competent jurisdiction, as set forth in this Agreement, without a jury, unless Mosaic elects to exercise its right to a trial by jury, which Client agrees it may do in its sole discretion.
- Mosaic shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement or the Proposal, for any failure or delay in fulfilling or performing any term of this Agreement or the Proposal when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Mosaic including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage.
- During the term of this Agreement and for a period of twelve (12) months thereafter, Client shall not, directly or indirectly, in any manner solicit or induce for employment any person who was or is employed by Mosaic who performed any work in connection with this Agreement, the Proposal, or any statement of work. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section, and the hiring of any employee or independent contractor who freely responds thereto shall not be a breach of this Section. If Client breaches this Section, then Client shall, on demand, pay to Mosaic a sum equal to one year’s basic salary or the annual fee that was payable by Mosaic to that employee, worker, or independent contractor, plus the recruitment costs incurred by Mosaic.
- The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
- In the event that one or more of the provisions of this Agreement are deemed to be illegal or unenforceable, the remainder of this Agreement and each remaining provision of this Agreement shall continue to be valid and effective and shall be enforceable to the fullest extent permitted by law.
- The Agreement shall be construed as if all Parties jointly prepared it, and any uncertainty or ambiguity in this Agreement shall not be interpreted against any one Party as the primary drafter of the Agreement. The Parties acknowledge that this Agreement is executed voluntarily by each of them without any duress or undue influence on the part of, or on behalf of, any of them.
- Each Party acknowledges that in order to perform the Services, the Parties may provide to each other or a Party may be exposed to certain confidential information of the other Party, including but not limited to, the identity of customers, clients, business plans, and marketing strategies, and any other information identified by a Party as confidential, or information that a reasonable person would understand to be confidential under the circumstances. Each Party will take all reasonable steps necessary to protect the other Party’s confidential information disclosed to it from improper disclosure. Each Party will keep all such information confidential and shall not reveal, share or provide any such confidential information to or with a third party without the prior, express written consent of the other Party. The obligations of this provision shall not apply to information which (i) is in the receiving Party’s possession before receipt from the disclosing Party; (ii) is or becomes a matter of public knowledge through no fault of the receiving Party; (iii) is rightfully received by the receiving Party from a third party without a duty of confidentiality; (iv) is independently developed by the receiving Party; or (v) is disclosed by the receiving Party under operation of law, provided the receiving Party gives the disclosing Party prompt written notice of the requirement to disclose and the opportunity to contest such disclosure.
- Unless Client expressly declines (opts out), Client hereby grants to Mosaic a worldwide, nonexclusive, non-transferable, fully-paid license to display Client’s name, trademarks, and logos for the sole purpose of identifying Client as a customer and promoting Mosaic’s services.
Each Party to this Agreement acknowledges and represents that it has read the foregoing Agreement, fully understands it, has been advised with respect thereto, and that the individual signing the Agreement on behalf of the Party has full power, capacity and authority to execute the Agreement and bind that Party hereto.
This Agreement is a binding contract and becomes effective as of on the date the Proposal is signed or payment to Mosaic is made. It contains important information regarding Client’s legal rights and obligations to use the Services. PLEASE REVIEW THIS AGREEMENT CAREFULLY. Client is responsible for ensuring that its use of the Services complies with the terms, conditions, and policies set forth in, or otherwise incorporated into, or referenced in, this Agreement. IF CLIENT FAILS TO COMPLY WITH THIS AGREEMENT, MOSAIC HAS THE RIGHT TO TERMINATE ANY OR ALL OF THE SERVICES PROVIDED TO CLIENT (AS WELL AS THE AGREEMENT, THE PROPOSAL AND/OR ANY OR ALL OF THE SERVICES).