This Agreement, is entered into on the date the Statement of Works (the “SOW”) is signed (the "Effective Date"), by and between Fluence and Client. Fluence and Client are sometimes individually referred to as "Party" and collectively referred to as the "Parties."
WHEREAS, the Parties have agreed to the SOW and hereby establish a non-exclusive strategic marketing Agreement whereby we will promote your products and/or services to potential customers within the market.
We will provide you with the services as agreed to in the SOW (the “Services”). If there is any discrepancy or conflict between the terms of this Agreement and the SOW, the terms outlined in the SOW shall take precedence. You acknowledge and accept our right to determine, at our sole discretion, that the Services may be provided by us and/or an affiliate of ours and/or our contractors and/or sub-contractors.
We shall be responsible for the actions of our affiliates or contractors as if they are Parties to this Agreement. Any changes to the scope of the SOW will need to be given in writing. Should additional works be added, costs for such works will need to be agreed in writing by both Parties. Billing for these additional services will then be invoiced and paid in accordance with the terms in this Agreement.
All payments under the SOW must be made via our integrated payment platform, Stripe. You agree to enter into autopayments via Stripe where we will bill you for any and all ongoing payments. You authorize us to withdraw the ongoing amounts as outlined in the SOW through Stripe. Any ongoing payments will be due monthly on the same date the Agreement was executed, unless agreed in writing between both Parties. You agree to keep a current payment method on record with Stripe.
In the event you choose to stop using a service, you understand and agree that the service will continue until the end of the current paid period, should you choose to use it. No refunds are payable under this Agreement. We reserve the right to withhold the Services until you settle any overdue invoice. We will also charge interest on the amounts due at a rate of ten percent (10%) per month. Such withholding of Services will not occur unless we provide you with five (5) days’ notice, via email to the registered account email address.
You agree that we are not liable for any losses, damage, corruption to your software or data, or for loss of profit, business, revenue, goodwill or anticipated savings. We warrant that all Services we provide shall be performed in a professional and workmanlike manner in carrying out our commitments. We waive all other statutory warranties that might otherwise have been implied, including an express exclusion of any warranty that any deliverables or software provided will be satisfactory or fit for a purpose.
Subject to these exclusions, we shall be liable to you for any loss, injury or damage arising directly or proximately out of our gross negligence and willful acts and those of our employees, agents or authorized representatives in connection with this Agreement. To the extent permitted by law, our total liability under this Agreement shall be limited to twenty-five percent (25%) of the total amount paid by you to us for this Agreement in the last thirty (30) day period of us providing the Services.
We own everything that we author for the delivery and performing of the Services until you have completed payment for the term outlined in the SOW. The Parties agree that we can use third-party-provided tools and plugins to deliver your content. These are owned by the respective third Parties. We will endeavor to ensure that we are entitled to use these plugins, but it is your responsibility to procure usage rights if you choose to terminate this Agreement. We will provide you with a list of such items on request.
You will indemnify, hold harmless and defend us, at your expense, from and against any and all claims arising out of this Agreement and the SOW, including infringement of copyrights, patents, trademarks, or other intellectual property rights as result of content provided by you. In the event that we suspect or are notified that content might infringe in such a way, we reserve the right to remove such content or to suspend your account entirely without prior notification to, or approval by, you. We will notify you within a reasonable time period should this be required.
This Agreement shall commence on the Effective Date and continue as outlined in the SOW document (the “Term”). After this period, any cancellation must be submitted in writing at least 90 days prior to the intended termination date.
Client shall grant and maintain Fluence’s administrative access to all advertising accounts, platforms, websites, and related tools identified in the SOW. The Client agrees to adhere to the daily ad-spend budget set forth in the SOW. Any change to that budget or any removal or restriction of Fluence’s access requires Fluence’s prior written consent.
If the Client alters the agreed ad-spend budget or revokes Fluence’s access without prior written consent, the Client must either:
Failure to comply entitles Fluence to:
For Services billed on a variable-fee basis (e.g., pay-per-close or pay-per-qualified-lead), “remaining contract value” shall be calculated using the Client’s average monthly fees for the six (6) months preceding the violation. If no such data exists, Fluence may calculate that average using current market benchmarks.
Save as where explicitly outlined elsewhere in this Agreement, both Parties warrant and agree that (i) the Parties shall keep secret and confidential all confidential information obtained from each other as a result of working together, and to take all reasonable security precautions in its safekeeping; (ii) neither Party shall disclose or make available, directly or indirectly, the confidential information of the other Party to any person or entity, unless written consent has been obtained; (iii) any copy of any part of the confidential information made by either Party shall be destroyed, or returned to the information owner, on demand or on termination of this Agreement; (iv) both Parties' obligations under this Agreement shall survive the termination of this Agreement; (v) both Parties will only use the confidential information only for the purpose of this Agreement, and for no other purpose unless otherwise specifically agreed; (vi) both Parties undertake and warrant that they will not remove, obscure, amend or deface any confidentiality notice or notice of ownership on the confidential information; (vii) both Parties agree not to disclose any passwords used Term to any individual except where such individual is under an obligation of confidentiality towards them. The term "confidential information" means all non-public information, data, or materials, whether in oral, written, or electronic form, disclosed by one Party to the other, including but not limited to, business plans, financial data, customer lists, product designs, and technical know-how, and any information that the Party should reasonably believe to be confidential. The confidentiality provisions outlined herein shall remain in full force throughout the term of this Agreement and shall survive termination.
You give us permission to identify you as a client of ours to other people, and to refer to the marketing services we produce for you in our promotional material.