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Letter of Agreement Terms & Conditions

Section 1: General

  1. These Terms and Conditions apply to any Letter of Agreement (“LOA”) entered between Client and Agency. In the event of a conflict between these Terms and a LOA, the LOA will control.
  2. The Parties agree that Agency is an independent contractor for Client. In other words, Agency is not an employee, agent, representative or joint venture partner of Client. Agency is free to perform similar services with other clients, companies, or employers.
  3. One of our core values is respect and honesty. We treat everyone with respect and expect the same in return. If you or your team demonstrate aggressive, disrespectful, demeaning, controlling, or similar behavior towards our team, we will issue a caution (orally or in writing). If the issue is not rectified, we reserve the right to terminate this agreement immediately. Please note that no refunds will be issued and all services and work will be ceased. This also includes micromanaging behavior towards our team.
  4. We have a proven system to deliver our services. Therefore:
    • You agree to use the tools, systems, and procedures of our choice to ensure the delivery of the service.
    • We will determine the method, details, and means for performing the service.
    • We and set our own hours and schedule.
  5. Our office hours are standard business days (USA & California) 9 AM to 5 PM. Please allow 36 business hours for responses to any emails, messages, support requests, etc.
  6. You agree to take the time to fill the onboarding form with as much detail as possible, including examples of what you like and don’t like in email design as well as email examples that you want your emails to resemble.
  7. Creative Works (copy and design):
    • Our design service does not include creating branding assets for your company such as characters, logos, etc.
    • You will be responsible for providing the branding and marketing assets (such as your logo, stock photos, product images, etc…) for use in the creative created by us.
    • Although our designers use specialized design software to produce graphics, ultimately all creative works will be designed and completed using Klaviyo’s tools, such as the block editor. Custom coding and designing emails through HTML is not included.
    • Creative work is inherently subjective and email design has constraints that are not present with other types of creatives such as web design, social media graphics, or product packaging. Constraints include but are not limited to best practices, dark mode, loading speeds, spam wording, and the capabilities of Klaviyo’s block editor. Therefore we shall have final creative control.
    • We will provide you with 2 (two) different designs for the first email we create which will become the main email template for future designs. In case you don’t like either, you may request up to 2 (two) more designs. You will then choose one of the designs and you may request up to 3 (three) revisions for the design you choose. In case you don’t like any of the designs, you agree that we will choose one as we have final creative control.
  8. Revisions:
    • You may request up to two (2) revisions for all creative we create and three (3) revisions for the first email. All revision requests must be received within 2 business days from being notified that the content is ready for your review. If revision requests are not received within 2 business days, we reserve the right to deem the work approved and no further revision requests will be accepted.
    • We have proven processes in place to produce creative and therefore direct communication with our designers and copywriters (including calls) is not included.
    • We have had experiences where brand owners get stuck on design because they don’t like the shadows on a button, a certain image is 10 pixels too small, or the text is twisted 2 degrees extra to the left. While we want you to have designs that look great and match your brand, getting stuck on minute details and seeking perfection will ultimately delay the project, hurt your business, and has minimal effect on results. Also, designs get rendered (meaning they show up) differently on different devices, screens, and modes. No matter how perfect emails are designed, in our experience they will never look like that for 100% of the people that receive them. Therefore, you agree to not let perfection stand in the way of progress and we have final creative control.
    • We do not provide design files. We will consider requests on a case-by-case basis.
    • You agree that you will not do any revisions in Klaviyo. All revisions must go through our team. You may make revisions AFTER approval if you need to.
  9. For security reasons, we do not log in into any platforms such as your online store, hosting service, review apps, or others with the exception of Klaviyo, which is required to deliver the service. There may be cases where certain tasks need to be completed, such as installing code or updating certain settings outside of Klaviyo that would impact our work. In such cases, we will do our best effort to provide you with guidance; however, you will be responsible for the execution of these tasks.
  10. The service includes providing you with advice, which is different from coaching. Coaching focuses on teaching you how to perform certain tasks or explaining the concepts behind a certain action. Although we don’t mind you asking questions to enhance your understanding, you want to be mindful that it’s not excessive or hinders progress on the account. Every hour we spend explaining is one hour less work on the account. We had an experience with a brand where they required an explanation for almost every single action we took. In the case we think that such questions are excessive and/or fall under coaching, we will notify you. If you still require it, it will be subject to an additional fee that we will determine at that time.
  11. All fees are considered earned upon commencement of the project regardless of whether the project is completed or not. All payments are final. No refunds will be issued for any reason whatsoever, including funds held in escrow. Once a project is started, any changes to the deliverables will be subject to an additional cost. Any fees paid, due, or owed under this Agreement shall be non-refundable.
  12. You acknowledge that we are foregoing other opportunities to provide these services. Once the Agreement is entered into it cannot be terminated. In the event you attempt to terminate this agreement, the full amount of the Fee is due and payable immediately and any amount held in escrow shall also be immediately released to us.
  13. Any request for services beyond the services detailed in the LOA is subject to additional costs. Client and Agency may enter into a new agreement or amend this agreement to cover those additional services, where the additional costs will be outlined.
  14. Custom coding or integration of your website or any other app with Klaviyo is not included.
  15. Any timelines for delivery may be dependent on factors beyond our control, including, but not limited to, you providing any requested information within 24 hours, other Klaviyo account users modifying or deleting our work, illness, pandemic, or other Acts of God, and unexpected issues that need to be resolved before we can proceed. If this does happen, you agree to allow us the time beyond the timeline mentioned in the LOA so we are able to complete the work accordingly.
  16. If our work is modified or deleted without our permission, the work will be deemed complete and you will be responsible for making payment in full. (e.g., if someone deletes the abandoned cart flow during or after we are done modifying it, then it will be considered complete).
  17. You are solely responsible for the legality and accuracy of copy and content (including copywriting and designs) (“Creative Works”) used in your marketing program. We do not verify the accuracy, truthfulness, legality or compliance of any Creative Works used in your marketing program, including copywriting and designs we create for you. You agree that the Agency (including employees, agents, and contractors) have no liability regarding the Creative Works used in your marketing program.
  18. Access to Klaviyo Master Partnership benefits is indirect and can only be accessed through Agency.
  19. We reserve the right to terminate this Agreement in our sole discretion effective upon written notice to you.
  20. We may provide advice and recommendations based on our experience in the field of email and SMS marketing; however, you shall be solely responsible for the consequences of any decision made based on or in reliance on our advice or recommendations.
  21. Results are not guaranteed. Every business is different and results can be impacted by factors outside of email marketing, such as business model, pricing, website, etc.
  22. You agree to let us use examples from our work for teaching and marketing. These are anonymous, unless otherwise explicitly agreed.

Section 2: One-Time Projects & Monthly Services

One-Time Projects

  1. In the event your actions or inaction causes the Project Schedule, as defined in the LOA, to be delayed by 21 calendar days or more, we shall have the right to deem the project complete and no refund will be issued. For avoidance of the doubt, the 21-day period commences whenever we are prepared to move forward but are prevented by your action or inaction. Any unpaid fees, including monies held in escrow, will be immediately due and payable with no further obligations from us.
  2. With the exception of meetings detailed in Section 4 of the LOA, any meetings requested by you with us are not included. In our sole discretion, an additional charge may be applied for a meeting requested by you depending on the context. In the event we deem a meeting necessary, we will request one at no additional charge.
  3. Advanced troubleshooting on dynamic flows that deals with custom integrations or 3rd party software outside of Shopify, BigCommerce, Magneto or WooCommerce is not included.
  4. The integration between your Klaviyo account and website must be complete before we are able to create email flows, email campaigns, segments, or lists. Client represents and warrants that at the time of execution of this Agreement, Client has integrated its Klaviyo account with its website. In case the integration is not complete, there are certain elements that we cannot embed in an email, such as dynamic blocks. In such case, we will move forward with the work based on what we can create. Any requests to go back and edit any deliverables with new elements that are now available due to the integration being complete after the work has been completed will be at an extra cost. Any requests to clone or update flow triggers, segments, or campaigns to reflect a new will also be at an extra cost. This also applicable in the case of changing integration with one platform (such as Shopify) and transition to another platform (such as WooCommerce) while the project is in progress. In other words, if we complete the work using the Shopify integration, then there will be an additional cost to transition the deliverables to work with the new integration such as WooCommerce.

 

Monthly Services

  1. The full monthly fee is due for any calendar month in which the Services are provided. Fees will not be prorated or discounted for partial months. Agency, in its sole discretion, may roll over unused services for partial months.
  2. With the exception detailed above, if a particular Service is not used by the end of the calendar month, that Service will not roll over to the following month. For illustration purposes only, if a client is entitled to three emails per month but only two emails are created, the Client will not be entitled to four emails in the following month.
  3. All requests for emails must be received by the 20th of each calendar month.
  4. Agency will typically deliver the first draft of emails within seven to ten business days from receiving all necessary information and documentation from the Client. The timeline may be longer, for example if more than four (4) emails are requested during the same time period.

 

Section 3: Consulting Services

  1. Any work requiring logging into your website platform or other app besides Klaviyo may be included based on Consultant’s sole discretion and the nature of your request. This is also applicable to custom coding/integrations.
  2. The number of consult hours provided will be as detailed in the LOA.
  3. Unless explicitly stated in the LOA, the consults cover email and SMS marketing using Klaviyo, including strategy, setup, troubleshooting, etc… but EXCLUDES Creative Works (such as copy and design), custom coding emails, or custom coding integration between Klaviyo and other platforms.
  4. In some cases, copy may be provided as part of the service, but that is based on the Consultant’s discretion.
  5. All services must be used within the timeframe stated in the LOA. Service requests after the expiration of the timeframe will be subject to an additional charge.
  6. Any unused service after expiration will be considered delivered and no refunds will be issued.
  7. Consultant in its sole discretion may decline requests.

Section 4: Miscellaneous – Things Our Lawyers Want Us To Put In

  1. During the term of this Agreement and for a period of 5 years following the termination of this Agreement, Client agrees to not solicit, contact, induce or assist a third-party in soliciting, contacting, or inducing any of Agency’s customers, employees or contractors in a manner that impairs or infringes on Agency’s relationship with such persons.
  2. We reserve the right to assign this agreement and any LOA in our sole discretion.
  3. All Intellectual Property made, developed, conceived, first reduced to practice, fixed in any tangible medium of expression, or created independently by us (the “Works”) during the performance of our services will be our sole and exclusive property (including the entire right, title and interest). However, you shall receive a revocable, worldwide, non-exclusive license to use, display, and market the Works created by us upon payment in full.
  4. Any documents, information, trade secrets, business processes, procedures, marketing materials, and logos, designs or any other intellectual property provided by Agency to Client in the course of this Agreement will remain the intellectual property of Agency.
  5. In the event a dispute arises between the Consultant and Client, they will attempt to resolve the dispute through friendly consultation. If the dispute is not resolved within a reasonable period of time, but in no case longer than ten (10) calendar days, then any or all of the outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues will be submitted to final and binding arbitration in accordance with the laws of the State of California under the rules of the American Arbitration Association then in effect. The arbitrator’s award will be final, and judgment may be entered upon it by any court having jurisdiction within the State of California. The Parties agree that You will be solely responsible for any costs of arbitration including the arbitrator’s fees. Additionally, in the event Agency prevails in Arbitration, Agency will be entitled to recover reasonable attorney’s fees and costs.
  6. These terms and conditions shall be governed and construed in accordance with the laws of the State of California. Both parties agree to submit themselves to the exclusive jurisdiction of the state and federal courts located in Orange County, California and waive any claim that any such forum is an inconvenient forum.
  7. During the course of rendering the services, each of the Agency and Client, their employees, subcontractors, officers and agents may receive or have access to Confidential Information of the other Party. In the event a party obtains Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”), the Receiving Party agrees to keep such Confidential Information in the strictest confidence and safeguard such information using the same degree of care as it uses to safeguard its own Confidential Information, which in no case shall be less than a reasonable degree of care. Each party’s Confidential Information consists of its business plans and customer lists, any financial information, any information the disclosing party identifies as confidential at the time of disclosure (or if in writing, the Disclosing Party marks as Confidential), and any information a reasonable person would consider confidential under the circumstances. Agency’s Confidential Information will also include techniques, methods, procedures, technical data, designs, drawings, marketing methods and strategies, pricing policies, software, coding, and any related materials, documents or information.
  8. Mutual Obligations: The Receiving Party shall (i) not use the Disclosing Party’s Confidential Information for any purpose other than the exclusive purpose of fulfilling its obligations under this Agreement; (ii) not use, disclose or otherwise make available to any person or entity (except as permitted herein) any of the disclosing party’s Confidential Information during the term of this Agreement or thereafter without the prior written consent of the disclosing party. (iii) limit access to Confidential Information to those employees, officers, subcontractors and agents on a need to know basis who has first executed a general written agreement committing such person to conduct that would not violate Client’s obligations pursuant to this Agreement; (iv) be responsible for any breach of this Agreement by employees, subcontractors, officers and agents.
  9. Exceptions: Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the receiving party from a third party, which third party had no obligation of confidentiality to the disclosing party; or (c) such information was in the possession of the receiving party at the time of the disclosure, or (d) was independently developed by the receiving party without reference to the disclosing party’s Confidential Information; (e) such information is/are required to be disclosed pursuant law, judicial order, or government regulation, provided that, in the event the receiving party becomes legally compelled to disclose any of the information, the receiving party shall provide to disclosing party prompt notice thereof so that disclosing party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.
  10. Injunctive Relief: The Receiving Party acknowledges and agrees that it would be difficult to fully compensate the Disclosing Party for damages resulting from the breach or threatened breach of the foregoing provisions and, accordingly, that the Disclosing Party will be entitled to seek injunctive relief, including without limitation temporary restraining orders, preliminary injunctions and permanent injunctions, to enforce such provisions. This provision with respect to injunctive relief will not, however, diminish the Disclosing Party’s right to claim and recover damages.
  11. The obligations under 4.1, 4.3, 4.5, 4.8, 4.13, 4.14. and 4.15 shall survive the termination or completion of services rendered or any provision thereof.
  12. You agree to indemnify and hold us harmless from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by us as a result of any claim, judgment, or adjudication against us related to or arising from your actions.
  13. Disclaimer. Consultant may provide advice and recommendations based on its experience in the field of email marketing, however, Client shall be solely responsible for the consequences of any decision made based on or in reliance on Consultant’s advice or recommendations. Results are not guaranteed. CONSULTANT’S SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND CONSULTANT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
  14. Liability Limitation. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY CIRCUMSTANCES OR LEGAL THEORY FOR DAMAGES RELATED TO INCONVENIENCE, DOWNTIME, COST OF CAPITAL, FRUSTRATION OF ECONOMIC OR BUSINESS EXPECTATIONS, LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOSS OF USE, TIME, DATA, OR GOODWILL, OR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, COLLATERAL, OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH LOSSES ARE FORESEEABLE; PROVIDED, HOWEVER, THAT TO THE EXTENT AN INDEMNIFIED PARTY IS REQUIRED TO PAY ANY DAMAGES RELATED TO INCONVENIENCE, DOWNTIME, INTEREST, COST OF CAPITAL, FRUSTRATION OF ECONOMIC OR BUSINESS EXPECTATIONS, LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOSS OF USE, TIME, DATA, OR GOODWILL, OR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, COLLATERAL OR CONSEQUENTIAL DAMAGES, TO ANOTHER PERSON IN CONNECTION WITH A THIRD PARTY CLAIM PURSUANT TO SECTION 4.12 SUCH DAMAGES WILL CONSTITUTE DIRECT DAMAGES NOT SUBJECT TO THE LIMITATION SET FORTH IN THIS SECTION 4.14 THIS SECTION SURVIVES THE TERMINATION OF THIS AGREEMENT.
  15. Waiver of Jury Trial. IF THE BINDING ARBITRATION CLAUSE (4.5) WERE NOT IN THIS AGREEMENT, CLIENT AND AGENCY WOULD EACH HAVE THE RIGHT TO A TRIAL BY JURY OR BY A JUDGE IN THE EVENT OF ANY LITIGATION BETWEEN CLIENT AND CONSULTANT. CLIENT AND AGENCY ARE EACH GIVING UP THE RIGHT TO A JURY TRIAL OR COURT TRIAL IN ANY DISPUTE BETWEEN THE PARTIES BY SIGNING THIS AGREEMENT. PARTIES SPECIFICALLY UNDERSTAND THAT THE RIGHT TO HAVE SUCH DISPUTES DECIDED BY A JUDGE OR A JURY IS HEREBY WAIVED. CLIENT AND CONSULTANT ACKNOWLEDGE THAT EACH PARTY HAD A REASONABLE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL BEFORE SIGNING THIS AGREEMENT. PARTIES WERE AFFORDED AT LEAST THREE (3) DAYS TO CONSIDER THIS AGREEMENT BEFORE SIGNING IT.
  16. Entire Agreement. This Agreement replaces any previous agreement between Client and Consultant. Any changes to this Agreement must be agreed to in writing by both Parties. The use of any gender shall include both genders and the singular shall include the plural whenever the context requires.
  17. Severability. If any part of this Agreement is held in whole or in part to be invalid, void, or unenforceable, that part of this Agreement shall be null and void, but the remainder of this Agreement will remain valid and enforceable.
  18. No Third-Party Benefit. This Agreement is intended to benefit only the Parties.
  19. Waiver. The failure of either Party to enforce at any time any of the provisions of this Agreement, shall not prevent that Party from enforcing that provision in the future.
  20. Right to Independent Counsel. Client and Consultant should consult an independent attorney about this Agreement before signing it. Client and Consultant each acknowledge that it was provided a reasonable opportunity to seek advice from independent counsel and consents to this Agreement, whether or not Client and Consultant exercised the opportunity to consult with independent counsel.

Section 5: Testimonial Authorization and Release Information

We would be honored to receive a testimonial from you at the right time. If and when you choose to do so, you agree to the following:

  1. You understand your written or video recorded testimonial (the “Testimonial”) and made on behalf of Agency may be used in connection with publicizing and promoting the Agency. You authorize the Agency to use your name, brief biographical information, including your listed city and state, and the Testimonial as defined on this form.
  2. You hereby irrevocably authorize the Agency, and its assigns, to copy, exhibit, publish or distribute the Testimonial for purposes of publicizing the Agency programs or for any other lawful purpose. These statements may be used in printed publications, multimedia presentations, on websites or in any other distribution media. You agree that you will make no monetary or other claim against the Agency for the use of the statement.
  3. In addition, you waive any right to inspect or approve the finished product, including written copy or edited video wherein your likeness or your testimonial appears. You hereby hold harmless and release the Agency from all claims, demands and causes of action which you, your heirs, representatives, executors, administrators or any other persons acting on your behalf or on behalf of your estate have or may have by reason of this authorization.
  4. You have read the authorization and release information and you give consent for the use as indicated above.