This Agreement is entered into on the date the Statement of Work (the “SOW”) is signed (the “Effective Date”), by and between Trendxglobal LLC dba Fluence Marketing Group (“Fluence”) and Client. Fluence and Client may each be referred to herein individually as a “Party” and collectively as the “Parties.” The Parties enter into this non-exclusive strategic marketing agreement pursuant to the applicable SOW.
Fluence will provide the services described in the applicable SOW (the “Services”). In the event of any conflict between this Agreement and the SOW, the SOW controls. Fluence may perform the Services directly or through affiliates, contractors, or subcontractors and remains responsible for their performance. Any changes to the SOW must be agreed in writing by both Parties.
All payments under the applicable SOW shall be made through Fluence’s designated payment processor (currently Stripe) or such other processor as Fluence may designate in writing. Client authorizes Fluence to initiate recurring and variable charges for all amounts due under the SOW and agrees to maintain a valid payment method on file throughout the Term.
Fees may include fixed recurring fees and/or variable performance-based fees. Fixed recurring fees shall be billed monthly in advance on the 1st of each month, unless otherwise specified in the SOW. Variable performance-based fees shall be charged as incurred or on a rolling basis as qualifying events occur.
If Client elects to discontinue a Service, it shall remain subject to the applicable notice and termination provisions set forth in the Term and Termination section. No refunds are payable.
Fluence may suspend Services for non-payment of any overdue invoice and may charge interest at the lesser of ten percent (10%) per month or the maximum rate permitted by law. Fluence will provide at least five (5) days’ prior written notice before suspension. Client shall be responsible for reasonable collection costs, including attorneys’ fees.
To the fullest extent permitted by law, Fluence shall not be liable for any indirect, incidental, consequential, special, punitive, or exemplary damages, including loss of profit, business, revenue, goodwill, or anticipated savings arising out of or relating to this Agreement, even if advised of the possibility of such damages.
Fluence warrants that the Services will be performed in a professional and workmanlike manner. Except as expressly set forth herein, Fluence disclaims all other warranties, whether express or implied, including any implied warranties of merchantability or fitness for a particular purpose.
Except for liability arising from Fluence’s gross negligence or willful misconduct, Fluence’s total cumulative aggregate liability arising out of or relating to this Agreement shall not exceed the total fees paid by Client to Fluence under the applicable SOW during the three (3) months preceding the event giving rise to the claim.
Upon full payment, Client receives a non-exclusive, non-transferable license to use deliverables for its internal business purposes. Fluence retains ownership of its methodologies, templates, processes, and proprietary systems. Fluence may use third-party tools to perform the Services and will use commercially reasonable efforts to ensure authorization during the Term. Client is responsible for any required usage rights following termination.
Client will indemnify, defend, and hold Fluence harmless from and against any and all claims, demands, regulatory actions, fines, penalties, damages, and costs (including reasonable attorneys’ fees) arising out of or relating to (i) content provided by Client, (ii) Client’s breach of this Agreement, or (iii) Client’s violation of applicable law. Fluence reserves the right to remove such content or suspend Client’s account without prior notice if it reasonably believes such content may infringe applicable law or third-party rights. Fluence will provide notice to Client within a reasonable time thereafter, if required.
This Agreement shall commence on the Effective Date and continue for the term specified in the applicable SOW (the “Term”). Following expiration of the initial Term, either Party may terminate upon at least ninety (90) days’ prior written notice, unless a different notice period is expressly set forth in the applicable SOW.
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.
Client acknowledges and agrees that Fluence may engage in outbound communications, including but not limited to telephone calls, SMS messages, voicemail drops, and live transfers, on Client’s behalf as part of the Services described in the SOW.
Client represents and warrants that:
Client agrees to maintain verifiable records of consent for all leads for a minimum of four (4) years and shall provide such documentation to Fluence upon reasonable request. Client shall be solely responsible for the legality, accuracy, and compliance of all contact data supplied. Fluence reserves the right to suspend or terminate outbound communications immediately if it reasonably believes that continued communications may violate applicable laws or carrier policies. Client agrees to indemnify, defend, and hold Fluence harmless from and against any claims, regulatory actions, fines, penalties, or damages arising from Client’s failure to obtain or maintain proper consent.
Fluence does not guarantee answer rates, appointment rates, or conversion outcomes, as such outcomes depend on factors outside Fluence’s control including lead quality, market conditions, and carrier filtering.
Client acknowledges that telecommunications carriers and third-party platforms may impose independent restrictions, filtering, or blocking policies outside of Fluence’s control.
Each Party shall implement commercially reasonable safeguards to protect personal data and confidential information from unauthorized access, use, or disclosure.
Client acknowledges that Fluence processes contact data and lead information solely for the purpose of performing the Services under the applicable SOW. Fluence does not sell Client data and will not use such data for any purpose other than performing the Services.
Client remains the owner and controller of all lead and contact data provided to Fluence and is solely responsible for ensuring that such data is collected, stored, and transferred in compliance with applicable data protection and privacy laws.
Fluence does not warrant that its systems are immune from security breaches but agrees to notify Client within a reasonable time after becoming aware of any material unauthorized access to Client data within Fluence’s systems. Client acknowledges that no system can be guaranteed to be completely secure.
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:
The Parties acknowledge that actual damages would be difficult to calculate and that the foregoing amount represents a reasonable estimate of anticipated damages and is not a penalty.
Save as explicitly outlined elsewhere in this Agreement, both Parties warrant and agree that:
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. Confidential Information shall not include information that:
Client grants Fluence the right to use Client’s name, logo, and a general description of the Services provided under this Agreement for marketing and promotional purposes, unless Client provides written notice requesting confidentiality.
During the Term of this Agreement and for a period of twelve (12) months following its termination, Client shall not, directly or indirectly, solicit for employment or engagement any employee or independent contractor of Fluence who was materially involved in providing the Services, without Fluence’s prior written consent.