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For purposes of these Freshad Client Terms and Conditions (“Terms”), “Freshad”, “we” or “our” refers to Freshad, A Marketing Company and “Client,” “you” or “your” refers to your company. Please read these Terms carefully as they, together with your signed Proposal (hereinafter “Service Agreement”) and any Change Orders constitute your entire agreement with Freshad (hereinafter the “Agreement”).  By engaging Freshad to provide services to you, you agree to be legally bound by these Terms. Freshad reserves the right to change or modify these Terms at any time and in its sole discretion by posting the amended Terms on our website at http://www.freshadinteractivegroup.com/terms/ Unless otherwise specified, any changes or modifications will be effective immediately upon posting on the website and your continued use of Freshad’s services after such time will constitute your acceptance of such changes or modifications.

1. A. Point of Contact:  Freshad will need at least one point of contact from you for day-to-day communications. This person will be responsible for: i) gathering your company’s data, files, or other content required for Freshad to complete its deliverables; ii) attending conference calls or meetings at key intervals with Freshad, and iii) coordinating internal communications with your team regarding the status of the project. They will receive all communications from your contact person(s) at Freshad.  Unless another individual is expressly designated in the Service Agreement as your company’s point of contact to whom Freshad should direct all communications, there will be a legal presumption that any person holding themselves out as representing your company’s interests relative to the services, and/or having day to day contact with Freshad in its performance of the services, is your company’s point of contact and is legally authorized to make decisions on your company’s behalf.  As such, Freshad will move forward with work authorized by this point of contact and Client shall be responsible for payment for such services.

• B. Deadlines:  Client is responsible for meeting time deadline(s) associated with Freshad’s performance of the deliverables which may include but are not limited to deadlines for providing content and/or approvals. Freshad is not responsible for late deliverables resulting from Client’s failure to meet time deadlines specified by Freshad.  Client also understands that if it makes changes in scope, requests additional deliverables or requires revisions of work delivered beyond what was set forth in the Service Agreement during the course of a project, this will affect the deadlines originally set at the outset of the project and Freshad will not be considered to have failed to meet the deadline set forth in the original Service Agreement for that project.

• C. Content:   Unless otherwise specifically stated as a part of the deliverables in the Service Agreement, Client is responsible for providing all content necessary for Freshad’s performance of the deliverables, including but not limited to written copy, logos, photographs, video, music, fonts and/or other materials. The pricing reflected in your Service Agreement with Freshad assumes that content will be readily provided to Freshad in a manner specified by Freshad, in acceptable format(s), and that Freshad will not be required to pull content from other Client website(s), follow up with prior vendors of Client, find content from third party sources or otherwise spend time obtaining, aggregating or organizing content on Client’s behalf. In situations where Freshad must locate, aggregate, organize or create content on Client’s behalf, Client will be charged for such additional time at a rate. Logos, graphics, and/or photographic images should be supplied in an electronic acceptable format, such as high-resolution .jpeg. Photo scans are typically charged. Photo retouching, manipulation, or illustration is billed at the rate. This pricing may vary based upon the original source material and the required output.
  
  If written copy is not addressed in the Service Agreement and Client requires Freshad to write copy for inclusion in the deliverables. In the case where Client is responsible for but has failed to provide written content to Freshad to allow it to perform the deliverables under this Agreement and Freshad therefore must obtain written content from other sources, Freshad disclaims any warranties over the accuracy and reliability of any such information. Client warrants and agrees that it shall be solely responsible for reviewing the accuracy of all written content provided by Freshad in connection with its provision of the deliverables before publication. Client must ensure that the content is factually accurate and not false or misleading.
  
  Client warrants and agrees that where it has provided content to Freshad, it has full legal authority to use such content and/or has obtained the required licenses, permissions, and/or approvals and warrants that such content is not in violation of any third party’s copyright(s), trade or service marks or other intellectual property rights. Further, Client assumes responsibility for the accuracy, spelling, and truthfulness of all content it provides to Freshad.  All Client-provided content including all pre-existing trademarks and copyright material shall remain the sole property of Client, and Client shall be the sole owner of all rights in connection therewith. Client hereby grants to Freshad a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely in connection with Freshad’s performance of the services and the production of the deliverables.
  
  Where Freshad has agreed to develop a website, video, web, mobile or social media application, email template, etc., such deliverables may require the purchase or license of fonts, photographs, background music, video clips, APIs, plug-ins or other items from a third party. The cost of same is NOT included in the pricing set forth in your Service Agreement with Freshad. Client may either purchase or license those items on their own or Freshad may purchase/license them on Client’s behalf. If Client has not specified that it would like to license these items on their own, Freshad will assume that it should license them and will invoice Client for same. Third party items that Client (or Freshad on behalf of Client) licenses from a third party to be placed deliverables created by Freshad for Client will not be owned by Client. Client should not use such content in other items, such as print materials or promotional items, or otherwise use such content inconsistent with the third party’s terms of licensing such use. Upon request, Freshad will provide Client with a listing of third party content used in the deliverables and the source(s) of such content so that Client may review the licensing requirements associated with that content.

• D. Design – What is Included/Not Included: Unless otherwise specifically stated as a part of the deliverables in your Service Agreement with Freshad, if Client has engaged Freshad to design a website, web application, mobile site, email template or the like, Freshad will provide two home page designs for Client to choose from. Additional designs can be provided at additional cost.  In the case of web and/or mobile sites, once Client has selected the design it would like to use as the home page, it will be permitted one round of revisions to that design.  Once those revisions have been made, Freshad will design one subpage template that will follow the same look and feel of the home page. Client will be permitted one round of revisions to that subpage template. Please note that the same subpage template will be used for all of the other pages of the site. Additional revisions beyond those set forth above or additional template designs will be billed to the client at the rate of .  Also, please note that the design of the layout/placement of the content in each of the subpages of a site is not included in the cost of the project.  Rather, Client will be asked to advise where they wish to place images, content, etc. within each of the subpages.  Should Client require assistance in designing a proper aesthetic for each of the subpages this will be at an additional charge. Finally, alterations to or resizing of graphics for placement in the subpages will also be at an additional charge.

• E. Scope change:  If Client requests additional work not included in the original scope of the Service Agreement, Client will be responsible for all additional charges. Scope changes include but are not limited to, additional design comps, additional rounds of revision, additional copyrighting/edits, additional video edits, changes to website/web application functionality, addition of plug-ins or other technical capabilities. If a Change Order form or amendment to the Service Agreement is not completed for the change in scope, Client’s emailed or verbal request for any work not included in the original scope of the Service Agreement will be deemed a change order request for which payment will be required. The pricing for the scope change will be the amount set forth in email or verbal communications between Client and Freshad or in a Change Order form.  If no amount has been specified, Client will be billed at the rate.

1. F. Branding Clients: If Client has engaged Freshad to assist with business name selection, logo creation or slogan creation, please be advised that Freshad cannot search trademark or other databases to ensure that the name or mark is not already being used, is/is not available to be trademarked or otherwise provide advice on whether the contemplated name or mark is legally available as Freshad cannot provide legal advice to its clients. Freshad encourages Client to retain an attorney to assist in this process. 

• G. Search Engine Optimization Clients:
  Client acknowledges the following with respect to SEO services from Freshad:

  • Freshad has no control over the policies and ranking algorithms of search engines with respect to the type of sites and/or content that they accept now or in the future. A Client’s website may decline in rankings or become deindexed from any search engine or directory at any time at the sole discretion of the search engine or directory.

  • Due to the competitiveness of some keywords/phrases, ongoing algorithm changes, and other competitive factors, Freshad does not guarantee specific rankings or search engine results page positions for any particular keyword, phrase, or search term.

  • Search engines have been known to rank pages over time, therefore we cannot guarantee the rankings and traffic of new websites (or pages) to improve in“x” amount of time. Generally speaking, Freshad’s SEO process takes at least 2-3 months to show some significant effect. During this time, the Client’s site is analyzed and optimized within the timelines and resources specified in the agreement. Achieving stable ranking improvements can take up to 6-12 months.

  • Engaging in link schemes, link exchanges or buying links can negatively impact your site’s rankings. Freshad does not assume liability for Client’s choice to link to or obtain a link from any particular website without prior consultation, nor does Freshad assume liability for ranking, traffic, indexing issues related to such penalties. 

  • Changes to a website, including but not limited to its structure or content, can affect SEO results. Freshad is not responsible for changes made to the website by Client or other parties that adversely affect the site’s visibility in search engine results.

  •  Freshad makes no guarantee/warranty of project timelines or added expenses if SEO work is destroyed either wholly or in parts, either knowingly or unknowingly by any party other than Freshad or without the prior consultation of Freshad.

  • Freshad is not responsible for the Client or any of its affiliates overwriting SEO work. The Client will be charged an additional fee for re-constructing, re-optimizing content/web pages, based on the hourly rate.

• H. Media/Advertising Clients

  • a. Performance – Client acknowledges the following with respect to media/advertising services from Freshad:

    • Freshad accepts no responsibility for policies of advertising networks, third-party search engines, directories or other websites that Freshad may submit to with respect to the classification or type of content it accepts, whether now or in the future. Client’s website or content may be excluded or banned from any third-party resource at any time if their policies are not adhered to. Client agrees not to hold Freshad responsible for any liability or actions taken by third-party resource under this Agreement.

    • Freshad does not guarantee position, consistent positioning, or specific placement for any particular paid search keyword, phrase or search term. Client acknowledges that Freshad’s past performance is not indicative of any future results client may experience.

    • Client acknowledges that advertising campaigns may be subject to the individual advertising network’s policies and procedures. Changes to these policies may require added resources employed by Freshad to adhere to these changes. The Client may be charged an additional fee for making these updates, based on the hourly rate.

    • Client acknowledges that any advertising networks, search engines, directories or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time.

    • Client acknowledges that advertising networks may drop listings from its database for no apparent or predictable reason. Freshad shall re-submit resources to the advertising network based on the current policies of the search engine in question.

    • Client acknowledges that Freshad cannot guarantee the exact placement of Client’s advertising; its availability or availability related to the funds in the Client’s account.

    • Development of creative assets in support of Paid Media campaigns will be outlined specifically as a part of the deliverables in the Service Agreement with Freshad.

    • Any forecasting metrics provided to Client are estimates based on industry knowledge and advertising network projected forecasts. 

    • If Freshad executes Insertion Orders (IO) as it relates to advertising placements, each IO will list the type and amount of deliverables, the maximum amount of money to be spent, and the flight dates of advertising placements. Freshad cannot be held accountable for the exact delivery, inventory and/or performance of ad campaigns projected in an IO due to these being third-party forecasts.

    • When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects. Freshad cannot be held to reporting accuracy without the ability to install appropriate tagging on all digital assets. 

    • When reporting is delivered by Freshad, data is provided directly based on the ad network’s currently available data. If reporting is delivered before 30 days after the campaign has ended, all data may not have time to be collected and exact accuracy can be affected.

  • b. Pre-payment for media/liability for payment.  Where Client has engaged Freshad to procure media or advertising on its behalf (e.g., including but not limited to print, radio, television, digital), and Client is not paying for the media/advertising directly to the advertising/media vendor, Freshad must receive payment for the media/advertising prior to the media/advertising running.  (Freshad will typically issue an invoice for media budget and media management services the month before the media is scheduled to run.) If Freshad does not receive payment for both the media budget and the media management fees, it may, at its discretion, choose to cancel or pause the media until payment is received. If Freshad has not received payment for the media/advertising but nonetheless allows the media/advertising to run, Client will remain responsible to Freshad and/or the advertising/media vendor for payment of same, notwithstanding the existence of any insertion order or contract between Freshad and the advertising/media vendor. If an advertising/media vendor seeks payment from Freshad for media that Client has not paid Freshad for, Client agrees that it will execute any documents requested by Freshad and/or the media/advertising vendor to assume liability for payment. 

  • c. Effect of early termination of media spend (as it pertains to third party vendors).  If Client seeks to cancel media earlier than the date set forth in any media contract or insertion order with a third-party media/advertising vendor, Freshad will use its best efforts to cancel the same without penalty to Client.  However, Client expressly understands and agrees that certain media/advertising vendors will not allow cancellations and/or will charge a cancellation fee or “short rate” for same.  Client shall be responsible for those amounts to the extent they have not already been paid to Freshad.  To the extent that Freshad has received payment from Client that will cover those amounts, Client shall nonetheless remain responsible for payment of Freshad’s time in having to process the cancellations at the rate of . 

  • d. Effect of termination of Service Agreement for media placement (as it pertains to Freshad). If Client terminates a Service Agreement for media placement, Freshad will cancel all pending media subject to the paragraph (c) above unless otherwise agreed to in writing by the parties.  If Client is indebted to Freshad for Freshad’s services, Freshad reserves the right to offset that debt with any payments Client has prepaid to Freshad for media.  Any amounts left over after full payment of Freshad’s outstanding fees (including time spent cancelling media) and fees still due to media/advertising vendors will not be refunded but may instead be used by Client for additional Freshad services and/or additional media placement.  In addition, Freshad’s terms relating to Early Termination in paragraph N(g) of this Agreement shall apply.

• I. Video clients: Freshad may, but is not required to, retain or store video footage on behalf of Client unless specifically agreed to in the Service Agreement. If a video shoot is scheduled that Client must cancel, Client should provide at least 24 hours notice. Shoots cancelled with less than 24 hours notice will be subject to a day’s production fee.

• J. PR and Online Reputation Management (ORM) clients:  Freshad will use its best efforts to create content and engage in other efforts to improve Client’s online reputation; however, Client understands that Freshad does not have control over third-party platforms, including their rules regarding what can be posted, what can be taken down, and when it can be taken down. In addition, Client understands and accepts the limitations and restrictions enumerated above relating to Search Engine Optimization (paragraph G) and Advertising (paragraph H). As such, Freshad cannot promise specific results and/or guarantee that a Client’s Online Reputation will be devoid of any negative online information. Similarly, while Freshad uses its best efforts to get a Client’s press release(s) published, Client acknowledges that the decision to accept a story remains with the publishing source and Freshad cannot, therefore, guarantee that a story or press release will be published or when it will be published.

• K. Ownership:

  • a. Client Content:  Client Content is written or visual content that is provided by Client to Freshad for its performance of the deliverables.  Client Content, including all pre-existing trademarks and copyright material, shall remain the sole property of Client, and Client shall be the sole owner of all rights in connection therewith.  Client hereby grants to Freshad a nonexclusive, non-transferable license to use, reproduce, and modify the Client Content solely regarding Freshad’s performance of the services and the production of the deliverables.

  • b. Third Party Materials:  Client shall not own any third party licensed commercial components or materials that are embedded in the deliverables provided to Client. The owners of these components shall retain ownership of these items in accordance with their Terms and Conditions, licensing agreements, or other applicable agreements. Upon request, Freshad shall provide Client with a listing of third party components used in the deliverables and the source(s) of such components.

  • c. Designs/Written Copy:  Upon completion of the deliverables and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Freshad shall assign to Client all ownership rights, including any copyrights, in any artwork, designs or written copy Freshad has created for Client as a part of its deliverables. At the request of Client and subject to a charge for assembling and preparing the materials for delivery, Freshad can provide a PSD (Photoshop file) or other file formats of any design it has created for Client and/or HTML files.

  • d. Websites, web and mobile applications:  Upon completion of the deliverables and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Freshad shall assign to Client all ownership rights to the front end design of any website, web or mobile applications; however, Freshad will retain ownership of all custom back-end programming.  Client, however, will be given a worldwide, royalty-free, non-exclusive, transferable, and perpetual right and license to the programming including, but not limited to, the right to modify, amend, and change the programming and create derivative works. If Client would like to have their website or web application “packaged” up and electronically delivered, this is an additional charge and Client will be billed for same. Payment must be received before Freshad will release the site.

• L. Website Development, Hosting & Maintenance:  

  • a. Client back end access: When Freshad is developing, hosting, or maintaining a Client’s site, except as otherwise specifically agreed, Freshad will retain admin access over the site to ensure security and the integrity of the site. If Client requests back end admin access to the site, Client understands and agrees that any changes or additions it makes to the site, including but not limited to, the addition or removal of third party plugins, may break it. If Client breaks the site or disrupts the site’s functionality, Freshad will use its best efforts to fix it; however, Freshad will charge Client for its time in doing so. 

  • b. Third-party updates: Client also understands and agrees that plugins that are incorporated into websites and website CMS platforms themselves are sometimes updated by the third-party vendor, with or without advance notice. When these updates occur, this can sometimes affect the integrity or functionality of the site. Freshad is not responsible for the same. If repairs are needed as a result of these updates, Freshad will advise Client and if the Client authorizes the repairs, Freshad will charge Client for its time in making the repairs.

  • c. Changing Hosts: If Freshad has been hosting Client’s website,  and Client seeks to move or has moved its website/web application to another server/host , Client should be advised that sites may not port over to certain servers and/or the site may lose certain functionalities on certain servers. Freshad is not responsible for same. Should the site require additional programming to port to another server/host, or should Freshad be required to engage in consulting with the new host to assist in the migration, Freshad will bill Client for same at the rate. Client should also be advised that some plugins that have been incorporated into a site have licenses. When a site is moved, Freshad will cancel those licenses. Client is responsible for assuming the cost of those licenses.  Before releasing passwords or other administrative rights to a site, Freshad will require full payment from Client for all amounts due under its Services Agreements with Client, as well as any associated fees relating to services under this paragraph.

  • d. Hosting vs. Maintenance: Freshad’s hosting fee is for the cost associated with giving your site a “home.” Hosting fees vary based on the type of “home” you select, the type of website you have and the level of traffic you anticipate. Freshad’s hosting fees do not include monitoring your site for inappropriate content or malicious attacks, making repairs or updates or applying patches to your site. Should Client require these additional services, Freshad can prepare a separate web maintenance agreement.

  • e. QA Testing: Freshad has a qualified team of QA testers that test the site across the two most recent versions of popular browsers including Internet Explorer (Edge), Firefox, Chrome, and Safari. IE11 or earlier is supported only upon request and may include additional development hours.

• M. Term and Termination:  Unless otherwise specified in the Service Agreement, the Service Agreement between Client and Freshad shall be effective as of the date that Client executes the Service Agreement and shall continue in effect through the initial term specified in the Service Agreement. Following the end of the initial term, any monthly or quarterly services in the Service Agreement shall continue for successive periods of one month/one quarter as the case may be unless Client provides 30 days’ notice of intent to cancel prior to the end of the initial term. A Client who has completed the initial term and is now going month to month/quarter to quarter may cancel at any time with 30 days’ notice. If no term is stated in the Service Agreement, the term shall be the later of complete payment of the amounts due under that Agreement or until the contracted services have been completed. Freshad may terminate an Agreement prior to the expiration of a term without penalty to Freshad or any further obligation to Client where Client: 1) has declared bankruptcy; 2) has failed to timely pay amounts due under the Agreement after being 30 days to cure same;  3) or acts in an unethical, unlawful or abusive manner or is otherwise incompatible with Freshad. Notwithstanding the termination of a Service Agreement, these Terms shall survive. Termination by Freshad shall not preclude it from pursuing other remedies available to collect unpaid contracted amounts.

• N. Payment Terms:  Unless expressly stated otherwise in the Proposal/Service Agreement, the following are Freshad’s payment terms.

  • a. Deliverable-based or one-time flat fee projects (including but not limited to website development, video, SEO and social media audits, design, and discovery/branding projects)

    • The total approved project cost will be billed 50% upfront, due at the time of receipt and 50% billed at the completion of the project(s) or at 45 days, whichever occurs first. Any approved ongoing monthly services associated with deliverable-based projects, including project management hours and website hosting, will be billed in advance of each month and are due upon receipt.

  • b. Paid media campaigns

    • Freshad will invoice the client for the cost of the media and Freshad’s media management fees one month prior to the month in which the media is intended to run. This invoice will be due upon receipt and must be paid prior to campaigns going live. If Freshad does not receive payment for both the media budget and the media management fees, it may, at its discretion, choose to cancel or pause the media until payment is received. If Freshad has not received payment for the media/advertising but nonetheless allows the media/advertising to run, Client will remain responsible to Freshad and/or the advertising/media vendor for payment of same, notwithstanding the existence of any insertion order or contract between Freshad and the advertising/media vendor. If an advertising/media vendor seeks payment from Freshad for media that Client has not paid Freshad for, Client agrees that it will execute any documents requested by Freshad and/or the media/advertising vendor to assume liability for payment. 

  • c. Monthy, quarterly, or annual fee-based services (including but not limited to website maintenance, website hosting, domain name renewals, monthly SEO or SEM management, email marketing)

    • Freshad will invoice monthly, quarterly or annual fee-based services on the 1st of the month preceding the month, quarter or year in which services are to be provided. Payment is due upon receipt.

  • d. Retainer/bank of hours

    • Clients who have chosen a marketing retainer or bank of hours have agreed to purchase a certain number of hours to be used over the course of a term specified in the Service Agreement. Freshad’s pricing of its bank of hours is conditioned on the Client’s agreement to fulfill the entire contracted term. Unless otherwise specified in the Service Agreement, prior to the beginning of each month during the term, Freshad will invoice a pro-rata* number of hours (Ex: term is 12 months and Client has elected to have 120 hours during the term; Client will be billed 10 hours each month). *In some cases, depending on the services required and the urgency, a larger number than the pro-rata number of hours will be billed during the first month of the term. Payment is due upon receipt. We strive to use a pro-rata number of hours each month; however, occasionally, this is not possible because we are awaiting Client content or approvals or Client has asked to defer some hours in anticipation of a large future initiative. If additional projects are requested that Freshad believes will cause the pro-rata bank of hours to be materially exceeded, Freshad, at its discretion may bill at the rate for overages instead of making a  deduction from the bank of hours for such services. Unused hours may roll forward only to the end of the term; unused hours at the end of the term will not be refunded. 

  • e. Third-party fees

    • Client will be billed for all third party costs, including but not limited to: website plug-ins; stock photography, music, video and fonts; domain name purchases and renewals; website hosting fees; ESP (email service provider platforms) such as Mailchimp or ConstantContact, CMS (content management system) licenses; social media, SEO or call monitoring platforms (such as Moz and Callrail); and SMS messaging platforms.  Some providers charge based on the volume of the number of email sends, posts, ads placed, calls made or messages sent. Client will be charged for any overages caused by Client’s exceeding a specified number of sends, posts, ads and the like.

    • Where Freshad has purchased licenses from third parties on behalf of Client and Client seeks to terminate the arrangement prior to the expiration of the term required for same, Client shall be responsible for all applicable cancellation fees required from those third parties and also shall be responsible for Freshad’s time spent having to process such cancellations.

 

• f. Other payment information

  • All payments made to Freshad in the form of a company check, cashier’s check, or electronic wire transfer.  Payments made by credit card may be subject to a 3% processing fee. Client will pay, reimburse, and/or hold Freshad harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and duties (other than as related to Freshad’s income), whether international, national, state, or local (however designated), which are levied or imposed by reason of the performance of the deliverables.

  • Payments not made within 60 days of the date of invoice may be subject to late charges equal to the lesser of i) one and one-half percent (1.5%) per month of the overdue amount; or ii) the maximum amount permitted under applicable law.  If Client fails to timely pay amounts due pursuant to this paragraph and/or the payment terms set forth in the Services Agreement, Freshad retains the right to stop work and/or suspend services after five (5) days’ written notice (email communication sufficient) until payment is made. Further, Freshad shall retain full ownership over the deliverables (whether completed or not) until full payment is received.

  • Client shall reimburse Freshad for travel and any related expenses. 

• g. Early termination of agreement

  • We put a great deal of care and effort into our relationships with our clients. Much of our work, including engaging in a deeper dive post-contract to understand our client’s business and objectives better, and developing strategies and plans for executing our client’s deliverables, is done in the early months of the relationship. We also provide more favorable pricing based on longer contract term lengths under the belief that a client will honor the full term of the Agreement. Clients choosing not to fulfill a contract term agree that they will be responsible for the early termination fees set forth below. If a client does not pay the early termination fee, Freshad reserves its right to pursue all remedies available to it under law.

    • 1. Deliverable-based or one-time flat fee projects:

      • (a). If the initial 50% payment has not already been paid: 75% of the total contract price as well as any project management fees

      • (b). If the initial 50% payment (or more) has already been paid: 50% of the remaining unpaid contracted amount (including any monthly project management fees); however, if Freshad has delivered the work and is only waiting for feedback, edits or approvals from the Client, the full contract amount will be due

    • 2. Paid media campaigns: 

      • (a). In the case of clients who have a fixed monthly media management payment of the 75% of the monthly media management fee and 75% of the project management fee for the remaining months of the contract term.

      • (c). In addition to fees to Freshad, Client may be responsible for fees to the media vendor. Freshad will use its best efforts to cancel it without penalty to Client. However, Client expressly understands and agrees that certain media/advertising vendors will not allow cancellations and/or will charge a cancellation fee or “short rate.” Client shall be responsible for those amounts to the extent they have not already been paid to Freshad.  In addition, Client will be responsible for Freshad’s time spent having to process such cancellations at the rate.

      • (d). If Client is indebted to Freshad for Freshad’s services, Freshad reserves the right to offset that debt with any payments Client has prepaid to Freshad for media. Any amounts left over after full payment of Freshad’s outstanding fees (including time spent canceling media) and fees still due to media/advertising vendors will not be refunded but may instead be used by Client for additional Freshad services and/or additional media placement.

    • 3. Monthly, quarterly or annual fee-based services:

      • Client shall be responsible for paying 75% of the unpaid remaining balance due for the full Agreement term for the monthly, quarterly or annual fee-based services. However, prepaid monthly, quarterly or annual hosting or domain renewals will not be refunded.

    • 4. Retainer/Bank of Hours:

      • Client shall be responsible for paying 75% of the remaining unpaid balance due for the full Agreement term for the retainer/bank of hours.

    • 5. In the event where Client has retained Freshad to provide a combination of any of the above services (e.g., deliverable-based + paid media or bank of hours + monthly-based services) in calculating the early termination fees, we will look at each service individually and charge each separately.

    • 6. Third party fees will not be refunded.

• O. Indemnity:  Client agrees to indemnify and hold harmless Freshad, its owners and employees from and against all allegations, claims, actions, suits, demands, damages, liabilities, obligations, losses, settlements, judgments, costs and expenses (including without limitation attorneys’ fees and costs) which arise out of, relate to Freshad’s use of materials (including but not limited to, logos, slogans, trademarks, written content, photographs, video, music and fonts), data or information furnished by Client. Such claims may include but are not limited to claims for invasion of privacy, defamation, patent, trademark copyright or other intellectual property claims and claims relating to false or misleading advertising brought by individuals or regulatory bodies. Additionally, Client agrees to indemnify and hold harmless Freshad, its owners and employees against any and all allegations, claims, actions, suits, demands, damages, liabilities, obligations, losses, settlements, judgments, costs and expenses (including without limitation attorneys’ fees and costs) which arise out of, or relate to business ideas, innovations, concepts, websites, web-based applications and the like that Client has generated and has asked Freshad to develop or implement.  For example, if you have an idea for a web application, we develop it, and it is determined that the application’s functionality violates another company’s patent, you will indemnify Freshad for any claims instituted by the third party. Freshad does not take responsibility for determining whether your business ideas, business plans, concepts or innovations may interfere with another party’s rights or are otherwise in compliance with applicable law.  You warrant that any business ideas, business plans, concepts or innovations that you have presented to Freshad and asked Freshad to create deliverables for are compliant with applicable federal, state and local laws, rules and regulations. Additionally, Client agrees to indemnify and hold harmless Freshad, its owners and employees against any and all allegations, claims, actions, suits, demands, damages, liabilities, obligations, losses, settlements, judgments, costs and expenses (including without limitation attorneys’ fees and costs) which arise out of personal injuries to Freshad employees resulting from the negligence or misconduct of Client or its employees.

• P. Disclaimer of Warranty: THE PRODUCTS AND SERVICES ARE PROVIDED on an “AS IS” and “AS AVAILABLE” BASIS AND FRESHAD EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Freshad does not warrant that its deliverables will comply with laws or regulations relating to Client’s specific industry (e.g., healthcare, education, legal, financial services, alcohol/cannabis, etc.), including but not limited to marketing or privacy laws/regulations. Freshad strives to exceed Client expectations, however, since marketing results can be influenced by various external forces outside of Freshad’s control, Freshad cannot guarantee specific results or return on investment. Notwithstanding the foregoing, if the deliverables to be provided to Client under the Service Agreement were custom web application development, Freshad does warrant that any programming code developed by Freshad as part of its deliverables shall be free of ‘bugs’ for 90 days after the go-live date. For purposes of this paragraph, ‘bugs’ are defined as programming errors that make the application unable to function in a manner defined by the Service Agreement and does not include upgrades or enhancements to the functionality or graphic design changes. Further, Freshad shall have no responsibility to fix any ‘bugs’ that arise after the go-live date where: 1) the Client or Client’s designees have gone into the back-end code and made changes, or 2) Client has changed the website hosting environment; or  3) a third party component that has been made a part of the deliverables has been updated or changed by the third party component owner after the go-live date. Unless otherwise specifically noted in the Service Agreement, Freshad does not warrant that any deliverables, including but not limited to websites, created for Client are accessible, Section 508 or ADA-compliant.  Development of an accessible website must be specifically agreed to in the Service Agreement.

• Q. Limitation of Liability: IN NO EVENT SHALL FRESHAD BE LIABLE TO CLIENT FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA OR LOSSES AS A RESULT OF DISCLOSURE OF USER CONTENT OR OTHER DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH FRESHAD’S PRODUCTS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FRESHAD EXCEED ANY COMPENSATION PAID BY YOU TO FRESHAD FOR ITS PRODUCTS OR SERVICES.

• R. Disclaimer of Warranty: THE PRODUCTS AND SERVICES ARE PROVIDED on an “AS IS” and “AS AVAILABLE” BASIS AND FRESHAD EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Freshad strives to exceed Client expectations, however, since marketing results can be influenced by various external forces outside of Freshad’s control, Freshad cannot guarantee specific results or return on investment. Notwithstanding the foregoing, if the deliverables to be provided to Client under the Service Agreement were custom web application development, Freshad does warrant that any programming code developed by Freshad as part of its deliverables shall be free of ‘bugs’ for 90 days after the go-live date. For purposes of this paragraph, ‘bugs’ are defined as programming errors that make the application unable to function in a manner defined by the Service Agreement and does not include upgrades or enhancements to the functionality or graphic design changes. Further, Freshad shall have no responsibility to fix any ‘bugs’ that arise after the go-live date where: 1) the Client or Client’s designees have gone into the back-end code and made changes, or 2) a third party component that has been made a part of the deliverables has been updated or changed by the third party component owner after the go-live date. By way of example, if a web application contains a third party content management system, such as Umbraco, Drupal, Joomla or WordPress, and changes to that system result in the inability of the Freshad code to properly interact with the system, Freshad shall not be responsible for fixing same. Additional programming work may be requested by Client under a separate contract at the current billing rates.  Unless otherwise specifically noted in the Service Agreement, Freshad does not warrant that any deliverables, including but not limited to websites, created for Client are accessible, Section 508 or ADA-compliant. The development of an accessible website must be specifically agreed to in the Service Agreement. Freshad has a qualified team of QA testers that test the site across the two most recent versions of popular browsers including Internet Explorer (Edge), Firefox, Chrome, and Safari. 

• S. Governing Law/Venue: This Agreement shall be governed by and construed in accordance with the internal laws of the State of Connecticut and not the principles of conflicts of law thereof. The Parties agree that the venue for any action arising out of this Agreement will be Hartford, Connecticut.

• T. Miscellaneous: If any portion of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity or enforceability of any remaining provisions or the provisions in the Services Agreement.  The Service Agreement entered into between the parties and applicable change orders, together with these Terms, constitutes the entire agreement between the parties as it pertains to the matters in that Service Agreement and supersedes any oral discussions, written communications or draft agreements that occurred prior to execution of that Service Agreement.  Notwithstanding the foregoing, to the extent that Freshad and Client have executed more than one Service Agreement throughout their relationship, each of those Service Agreements, along with their corresponding Terms, shall be treated separately and remain in full force and effect according to their individual terms.