IMPORTANT NOTICE: THESE TERMS OF SERVICE (“TERMS”) CONSTITUTE A LEGALLY BINDING AGREEMENT. PLEASE READ THEM CAREFULLY. THIS DOCUMENT IS A GENERAL TEMPLATE INTENDED FOR A BUSINESS OPERATING UNDER UNITED STATES LAW. OPITRADE DIRECT LLC (“WE”, “US”, “OUR”) STRONGLY ADVISES YOU (“CLIENT”, “YOU”, “YOUR”) TO CONSULT WITH A QUALIFIED LEGAL PROFESSIONAL IN THE UNITED STATES (AND SPECIFICALLY WITHIN THE RELEVANT STATE(S) OF OPERATION) TO ENSURE THESE TERMS FULLY COMPLY WITH ALL APPLICABLE FEDERAL AND STATE LAWS AND MEET YOUR SPECIFIC BUSINESS NEEDS BEFORE IMPLEMENTATION. WE PROVIDE THIS TEMPLATE FOR INFORMATIONAL PURPOSES ONLY AND MAKE NO WARRANTIES REGARDING ITS LEGAL SUITABILITY OR ENFORCEABILITY.
1. Acceptance of Terms
By engaging Elliott Barry LLC for any products or services, you signify your full acceptance of these Terms. These Terms, along with any specific proposal, statement of work (“SOW”), or service agreement signed by both parties, constitute the entire agreement between you and Elliott Barry LLC (the “Agreement”). If you do not agree to these Terms, you must not use our services. We reserve the right to modify these Terms at any time, with notice provided to you via email or through our website. Your continued use of our services after such modifications constitutes your acceptance of the new Terms.
2. Definitions
- “Services”: Refers to all digital marketing services provided by Elliott Barry LLC, including but not limited to Search Engine Optimization (SEO), Pay-Per-Click (PPC) Advertising Management, Content Marketing, Social Media Marketing, Email Marketing, Conversion Rate Optimization (CRO), Analytics, web design, and consulting, as detailed in an applicable SOW.
- “Client Content”: Refers to all text, images, logos, videos, data, and other materials provided by the Client to Elliott Barry LLC for use in connection with the Services.
- “Deliverables”: Refers to the specific outputs, reports, content, campaign setups, or other materials created by Elliott Barry LLC specifically for the Client as part of the Services, as defined in the SOW.
- “Intellectual Property Rights”: Refers to all patents, copyrights, trademarks, trade secrets, moral rights, and other intellectual property rights.
- “Confidential Information”: Refers to any non-public information disclosed by one party to the other, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
- “SOW”: Statement of Work, a document detailing the specific Services, Deliverables, timelines, and fees for a particular project or engagement.
3. Scope of Services
3.1. Service Provision: Elliott Barry LLC agrees to provide the Services as described in the mutually agreed-upon SOW. Each SOW shall be incorporated into and form part of this Agreement. 3.2. Performance: We will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. 3.3. Changes to Scope: Any changes to the scope of Services must be mutually agreed upon in writing by both parties, potentially requiring an amendment to the SOW and an adjustment in fees and/or timelines. 3.4. Third-Party Platforms: Many Services rely on third-party platforms (e.g., Google Ads, Facebook, Mailchimp). The Client acknowledges that these platforms have their own terms of service, policies, and operational functionalities. Elliott Barry LLC is not responsible for changes made by these third parties, including algorithm updates, policy changes, or platform downtime, although we will strive to adapt strategies accordingly.
4. Client Obligations
4.1. Cooperation: The Client agrees to cooperate fully with Elliott Barry LLC and provide all necessary information, resources, and access (e.g., website backends, ad accounts, analytics accounts) in a timely manner to facilitate the provision of Services. 4.2. Client Content: The Client is solely responsible for providing all Client Content. The Client warrants that it owns or has all necessary rights, licenses, and consents to use the Client Content and grants Elliott Barry LLC a non-exclusive, royalty-free, worldwide license to use, reproduce, modify, and display the Client Content solely for the purpose of providing the Services. 4.3. Approvals: The Client agrees to provide timely feedback and approvals for Deliverables and campaign elements. Delays in approvals may impact project timelines and results. Approvals must be provided in writing (email suffices). 4.4. Compliance: The Client warrants that its business, website, products, services, and all Client Content comply with all applicable US federal, state, and local laws and regulations, as well as the policies of any third-party platforms used. 4.5. Accuracy: The Client is responsible for the accuracy and completeness of all information and materials provided to Elliott Barry LLC.
5. Fees and Payment
5.1. Fees: The Client agrees to pay Elliott Barry LLC the fees as set forth in the applicable SOW. Fees may include one-time charges, recurring monthly retainers, and media spend. 5.2. Invoicing: Invoices will be issued according to the schedule outlined in the SOW. Unless otherwise specified, recurring fees are typically invoiced monthly in advance. 5.3. Payment Terms: Payment is due within [e.g., 15 or 30] days of the invoice date unless otherwise specified in the SOW. Payments shall be made in United States Dollars (USD) via [e.g., Bank Transfer/ACH, Credit Card, Check]. 5.4. Late Payments: Overdue invoices shall accrue interest at a rate of [e.g., 1.5%] per month or the maximum rate permitted by the applicable state law, whichever is lower. Elliott Barry LLC reserves the right to suspend Services if payments are significantly overdue. 5.5. Taxes: All fees are exclusive of any applicable sales, use, or other taxes. The Client is responsible for paying all such taxes levied on the Services, if any. 5.6. Expenses: The Client agrees to reimburse Elliott Barry LLC for all pre-approved, reasonable out-of-pocket expenses incurred in connection with the Services (e.g., stock photography, specific software licenses, travel).
6. Intellectual Property Rights
6.1. Client Content: The Client retains all Intellectual Property Rights in the Client Content. 6.2. Elliott Barry Pre-Existing IP: Elliott Barry LLC retains all Intellectual Property Rights in its pre-existing materials, tools, software, methodologies, and know-how used in providing the Services (“Elliott Barry IP”). 6.3. Deliverables: Upon full and final payment for the relevant SOW, Elliott Barry LLC grants the Client a perpetual, non-exclusive, worldwide, royalty-free license to use the final Deliverables created specifically for the Client for its internal business purposes. For clarity, this license does not extend to the underlying Elliott Barry IP used to create the Deliverables. 6.4. No Transfer: Except as expressly stated herein, this Agreement does not transfer any Intellectual Property Rights from one party to the other.
7. Confidentiality
7.1. Obligation: Each party agrees to hold the other party’s Confidential Information in strict confidence and not to disclose it to any third party (except as permitted herein, such as to employees or contractors under a duty of confidentiality) or use it for any purpose other than performing its obligations under this Agreement. 7.2. Exceptions: Confidential Information does not include information that (a) is or becomes publicly known through no fault of the receiving party; (b) was in the receiving party’s possession before disclosure; (c) is rightfully received from a third party without a duty of confidentiality; or (d) is independently developed by the receiving party. 7.3. Required Disclosure: If a party is required by law, regulation, or court order to disclose Confidential Information, it shall provide prompt written notice to the other party (to the extent legally permissible) to allow for a protective order or other remedy. 7.4. Duration: The obligation of confidentiality shall survive the termination of this Agreement for a period of [e.g., 3 or 5] years.
8. Warranties and Disclaimers
8.1. Mutual Warranties: Each party warrants that it has the legal power and authority to enter into this Agreement. 8.2. Elliott Barry Warranties: We warrant that we will perform the Services in a professional manner as described in Section 3.2. 8.3. DISCLAIMER OF RESULTS: THE CLIENT ACKNOWLEDGES THAT DIGITAL MARKETING RESULTS ARE SUBJECT TO NUMEROUS FACTORS BEYOND OPITRADE DIRECT LLC’S DIRECT CONTROL, INCLUDING, BUT NOT LIMITED TO, SEARCH ENGINE ALGORITHM CHANGES, COMPETITOR ACTIONS, MARKET FLUCTUATIONS, AND THIRD-PARTY PLATFORM POLICIES. THEREFORE, OPITRADE DIRECT LLC DOES NOT WARRANT OR GUARANTEE ANY SPECIFIC OUTCOMES, SUCH AS SPECIFIC SEARCH ENGINE RANKINGS, WEBSITE TRAFFIC LEVELS, CONVERSION RATES, OR RETURN ON INVESTMENT (ROI). 8.4. GENERAL DISCLAIMER: EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, OPITRADE DIRECT LLC PROVIDES THE SERVICES AND DELIVERABLES “AS IS” AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
9. Limitation of Liability
9.1. INDIRECT DAMAGES: IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, LOST REVENUE, OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9.2. DIRECT DAMAGES: THE TOTAL AGGREGATE LIABILITY OF OPITRADE DIRECT LLC TO THE CLIENT FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY THE CLIENT TO OPITRADE DIRECT LLC UNDER THE SPECIFIC SOW GIVING RISE TO THE CLAIM DURING THE [e.g., SIX (6) or TWELVE (12)] MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 9.3. Exceptions: These limitations shall not apply to breaches of confidentiality, indemnification obligations, or liability arising from gross negligence or willful misconduct.
10. Term and Termination
10.1. Term: This Agreement shall commence on the Effective Date and continue until all SOWs hereunder have been completed or terminated, unless terminated earlier as provided herein. 10.2. Termination for Cause: Either party may terminate this Agreement or any SOW immediately upon written notice if the other party: (a) materially breaches any provision and fails to cure such breach within [e.g., 30] days of receiving written notice; or (b) becomes insolvent, makes an assignment for the benefit of creditors, or files for bankruptcy. 10.3. Termination for Convenience: Either party may terminate this Agreement or any SOW for any reason upon providing [e.g., 30 or 60] days prior written notice to the other party. 10.4. Effect of Termination: Upon termination, the Client shall pay for all Services performed and expenses incurred up to the effective date of termination. Elliott Barry LLC shall deliver any completed Deliverables for which payment has been received and cooperate in the transition process as reasonably requested. Sections 6, 7, 8, 9, 11, 14, and 15 shall survive termination.
11. Indemnification
11.1. Client Indemnification: The Client shall indemnify, defend, and hold harmless Elliott Barry LLC, its officers, directors, employees, and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to (a) the Client Content (including claims of infringement); (b) the Client’s products, services, or business operations; or (c) any breach of the Client’s warranties or obligations under this Agreement. 11.2. Elliott Barry Indemnification: Elliott Barry LLC shall indemnify, defend, and hold harmless the Client from and against any third-party claims that the final Deliverables (excluding Client Content and any third-party materials) infringe upon any US copyright or trademark, provided the Client promptly notifies us and allows us to control the defense.
12. Data Privacy
Both parties agree to comply with all applicable US federal and state data protection and privacy laws (such as the California Consumer Privacy Act (CCPA/CPRA), if applicable). Elliott Barry LLC will handle any personal data provided by the Client in accordance with its Privacy Policy
13. Force Majeure
Neither party shall be liable for any failure or delay in performance due to causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, riots, pandemics, governmental action, labor disputes, or utility failures (“Force Majeure Event”). The affected party will provide notice and use reasonable efforts to resume performance.
14. Governing Law and Dispute Resolution
14.1. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, United States, without regard to its conflict of laws principles. 14.2. Jurisdiction: The parties irrevocably agree that the state and federal courts located in the State of Delaware shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement. 14.3. Amicable Settlement: Before resorting to litigation, the parties agree to attempt to resolve any dispute amicably through good-faith negotiations between senior executives for a period of at least thirty (30) days.
15. General Provisions
15.1. Entire Agreement: This Agreement, including all SOWs, constitutes the entire understanding between the parties and supersedes all prior agreements, discussions, and representations. 15.2. Notices: All notices must be in writing and sent to the addresses specified in the SOW or as otherwise updated. Email shall suffice for most communications, but formal notices should be sent via certified mail (return receipt requested) or a reputable overnight courier. 15.3. Waiver: No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. 15.4. Severability: If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect. 15.5. Assignment: Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, except in the case of a merger, acquisition, or sale of substantially all assets, provided the assignee agrees to be bound by these Terms. 15.6. Relationship: The relationship between the parties is that of independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship. 15.7. Amendments: No amendment or modification to this Agreement shall be valid unless in writing and signed by authorized representatives of both parties.