Last Revision: 12.07.2020 (“Effective Date”)
Client (“You”, “Your”, or “User”) desires to purchase, and TMG360 Media, Inc. (“TMG360 Media”, “Us”, “Our”, “We”)(together “Parties”) desires to provide to Client, subject to these Terms & Conditions (the “Agreement”) TMG360 Media’s platforms, plans, products, websites, subpages, subdomains, mobile applications, and all content, products and /or services (“Services”) as may be made available by TMG360 Media including as described below. Please read this Agreement carefully before using any Services this is a legally binding contract. The terms of this Agreement are subject to change and therefore, the User should frequently review this Agreement on a monthly basis at http://tmg360media.com/terms-and-conditions/. Your continued use of Services after revisions to this Agreement are made and posted will constitute Your acceptance of the revisions and any new terms.
THIS AGREEMENT CONTAINS A FORUM SELECTION CLAUSE. If You do not agree to be bound by all parts of this Agreement, including, but not limited to, the Forum Selection Clause, You should not access or use Our Services in any way now or at any future time. The User acknowledges and agrees that: (i) all terms and provisions found herein are valid and do not violate any public duty or policy; (ii) the risks of using TMG360 Media’s Services are clearly and sufficiently expressed; (iii) the terms herein described are fairly entered into; and (iv) the exculpatory intentions of TMG360 Media are expressed in clear and unambiguous language.
In consideration of the mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to the following:
The following terms apply in all instances wherein Client elects to receive the below described Services:
- TMG360 Media Sponsored Services (“TMG360 Media Ads”). TMG360 Media Ads is an advertising campaign managed and serviced by TMG360 Media. TMG360 Media will create Ads based on the content provided by Client, and will distribute the Ads through the TMG360 Media’s network of distribution media (“Distribution Media”). The Distribution Media include social media networks such as Facebook, Twitter, and Instagram and also include search engine advertisements on search engines such as Google, Yahoo, and Bing. Client will determine his/ her/its monthly advertising budget. The Client Monthly Advertising Budget will be used and exhausted accordingly, as a result of clicks, calls or other placement or advertising services in connection with distribution of Ads through the TMG360 Media’s Distribution Network. In any monthly billing cycle, Client and TMG360 Media agree that TMG360 Media may use up to 110% of the Client Monthly Advertising Budget. Any balance of the Client Monthly Advertising Budget at the end of a monthly billing cycle, will be rolled over to the next monthly billing cycle, and any negative balance of the Client Monthly Advertising Budget at the end of the last month of the TMG360 Media Ads is due immediately.
- TMG360 Media Communications Local Services (“TMG360 Media Local”). TMG360 Media Local implements strategies and services consistent with industry standards, customs and practices including but not limited to the use of software applications which crawl the World Wide Web on a periodic basis (minimum weekly) to find and notify Client of identifieddata and reviews (if applicable) written or published on the Internet regarding Client and/ or Client’s business.It includes the application of “on page” and “off page” search strategies designed to achieve a higher ranking for each Client’s website in search engine results and placement for the Regional business listing in Google, Yahoo, Bing maps/ places and local directories. Client acknowledges that search results and search engine rankings are influenced by several factors, and TMG360 Media does not guarantee any particular placement, position or rank for each Region’s website, any return on investment, or a specific business listing in any search results.
- TMG360 Media Website Services (“TMG360 Media Web”). TMG360 Media will provide a website based on custom specifications and/or a customizable template, that may include e-commerce capabilities, programming (which may be outsourced to a third party vendor), and other features as agreed (“Website”). In the case of Your selection of a customizable template, TMG360 Media will provide an initial round of design and client review of the custom template, then TMG360 Media will provide a second round of design and client review based on Client feedback from the initial round of design. Client agrees to participate in the custom design rounds and respond to TMG360 Media correspondence concerning design rounds in good faith. Any services beyond the aforementioned rounds of design shall be billed hourly at TMG360 Media standard rates. TMG360 Media may maintain such Website at standard or agreed upon rates, and may also assist with arranging for hosting, and may register and administer the Website URL with at Client’s expense based on standard or agreed upon rates.
- TMG360 Media Social Media Services (“TMG360 Media Social”). Based upon the unique terms of the particular plan You choose, TMG360 Media will customize and implement a social media strategy to promote Your businesses’ products and services on one or more social media platforms which may include, but are not limited to Facebook, Twitter, Instagram, Google+, YouTube, Pinterest, LinkedIn, etc. The services provided in your particular plan are implemented in ways to enhance how Your business communicates to its customers, making what You tell Your customers, and how You communicate, consistent and effective across all platforms. At the same time, TMG360 Media will use tools to track and obtain feedback on how Your customers react and respond to these online communications. In addition to an account representative assigned to Your TMG360 Media Social account, TMG360 Media’s social media plans include but are not limited to the following: Monthly Content Calendar, Monthly Analytics & Content Strategy Reporting, Monthly Cover Photo Design, PPC Social Ads, Blog Posting, Hashtag Branding & Tracking, Monthly Reputation Management, Follower Maintenance, and Content Marketing Consulting. Pricing will be based upon the specific plan you choose.
- TMG360 Media Communications Call Tracking Services (“TMG360 Media Call Tracking”). For a base fee and a fee per the number of minutes used as may be specified by TMG360 Media at its standard rates or asagreed to with Client from time to time, TMG360 Media will install tracking pixels and report to Client on which calls are incoming from which Distribution Media. Client will have access to a dashboard to review and listen to calls and if requested, may also receive email notification of all calls. Client will additionally have the temporary use of dedicated telephone number(s) which will provide Client with the ability to record calls, and allow Client to analyze, quantify and measure the performance of the TMG360 Media Call Tracking service. Client acknowledges and agrees that TMG360 Media may be required to replace or change the numbers from time to time and agrees that TMG360 Media may do so without prior notice to client.
- TMG360 Media Live Chat Services (“Live Chat”). For a base fee up to a certain level of traffic as determined by specified by TMG360 Media from time to time at its standard rates or as agreed to by Client from time to time, TMG360 Media will provide operators to staff the Live Chat feature on Client’s Website, if applicable, during hours to be specified and agreed to by the parties. The operators’ scope of services will include and be limited to answering Live chat requests, and endeavoring to obtain a lead name, email address, and contact telephone number of the visitor, in order to provide same to Client for follow-up on the lead. Operators will not be able to answer questions about the Client’s products or services or provide any other assistance to Live Chat visitors, and as such are only receptionists. A transcript of Live Chats will be provided to Client.
- TMG360 Media Email Marketing Services (“TMG360 Media Email Marketing”). For a base fee as may be specified by TMG360 Media at its standard rates or as agreed to by Client from time to time, TMG360 Media will design and draft an email marketing campaign based upon Client’s specifications. Client shall be responsible for the base fee as aforementioned together with any third party costs for services such as Mailchimp or Constant Contact, based upon the number of emails to be distributed. TMG360 Media will provide Client with a report setting out the data associated with the email marketing campaign and Client will be able to access email marketing data through a dashboard.
- TMG360 Media Public Relations (“TMG360 Media PR”). TMG360 Media will provide public relations services media, on a non-exclusive basis and agrees to devote such time as we determine necessary to accomplish the agreed upon desired results on your behalf at its standard rates or as agreed to by Client from time to time. This agreement is cancelable by either party after the initial term, with a 30 day prior written/emailed receipted notice to firstname.lastname@example.org or Client’s email of record. Payment is due in advance of Services along with an expense advance for related expenses incurred on your behalf. PR fees paid prior to cancellation are non-refundable.
- Bid Management. If Client elects to and has purchased the use of bid management software licensed by TMG360 Media for use by Client in connection with management of bids for advertising on Distribution Media (“Bid Management Software”). Client shall pay TMG360 Media at its standard rates or at an agreed percentage of all advertising spend on Distribution Media, payable on a monthly basis.
- TMG360 Media Creative Services (“TMG360 Media Creative”). If Client elects to and has purchased TMG360 Media Creative Services, including but not limited to such creative services as graphic design, trade show booth design, PowerPoint Presentation design, logo design, brochure design, media placement. All Services shall be at TMG360 Media’s standard rates or at a rate agreed to with Client. Client shall be responsible for the fees and expenses as and such fees and/or expenses may be payable in advance.
- TMG360 Media Photography and Videography Services (“TMG360 Media Photo/Video”). If Client elects to and has purchased TMG360 Media Photo/Video for fees and expenses as may be specified by LTMG360 Media at its standard rates or as agreed to by Client pursuant to a service description, in an agreement summary between TMG360 Media and Client, or as otherwise agreed to from time to time. Photography, illustrations, film, video production, video editing, animation, scanning, printing, delivery, distribution, third party media, renderings and/or other similar services and associated expenses may be performed by third parties retained by LTMG360 Media on Client’s behalf, and shall be subject to such terms and conditions applicable to same, as set out in any third party services agreement. TMG360 Media may charge a premium for providing management services in connection with all TMG360 Media Photo/Video services retained on behalf of Client and provided by a third party. Payment for TMG360 Media Photo/Video services may be estimated in advance by TMG360 Media who shall receive payment in full from Client before TMG360 Media proceeds with any TMG360 Media Photo/Video services. Unless otherwise specified in any applicable third party contract for the provision of photo and/or video or similar services, ownership of negatives and original files may remain the property of the third party provider of such services, notwithstanding any provision herein to the contrary.
- TMG360 Media Search Engine Optimization Services (“TMG360 Media SEO”). If Client elects to and has purchased TMG360 Media SEO the fee as may be specified by TMG360 Media at its standard rates or as agreed to by Client from time to time, TMG360 Media will provide some or all of the following services as agreed between TMG360 Media and Client:
- a) On Page SEO
- i) Organic and Technical optimization;
Technically sound site;
● Keyword optimization;
● Mobile optimization
● Setting up and linking Google Analytics and Google Search Console
ii) Site Submission to Google and Bing;
iii) Content Optimization;
- b) Off Page SEO
i) Link management;
ii) Local optimization;c) Ongoing Site Management & Optimization
i) Keyword ranking reports;
ii) Technical optimization: errors, duplicates, 404s, site speed reviews;
iii) Organic traffic analysis and reporting;
iv) Monitoring and Optimization of behavioral, engagement, audience and ecommerce metrics.
Pricing on all plans is subject to automatic yearly increases of the greater of 3% or the one year CPI-U increase for the San Francisco Area. All fees are billed in advance and payable upon receipt. Interest of 1.5% will apply to any late payments and client is responsible for any fees and costs incurred in collections including attorneys’ fees.
- DISCLAIMER – No representations or warranties ANY PRODUCTS AND ANY SERVICES OR ITEMS OBTAINED BY AND THROUGH TMG360 Media ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TMG360 Media DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NEITHER TMG360 Media NOR ANY PERSON ASSOCIATED WITH TMG360 Media MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE PLATFORM, PLANS, PRODUCTS AND SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER TMG360 Media NOR ANYONE ASSOCIATED WITH TMG360 Media REPRESENTS OR WARRANTS THAT THE PLATFORM, PLANS, ITS CONTENT OR ANY SERVICES, PRODUCTS OR ITEMS OBTAINED BY OR THROUGH TMG360 Media WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE PLATFORM, PLANS, OR ANY SERVICES, PRODUCTS, OR ITEMS OBTAINED BY OR THROUGH TMG360 Media WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. WE DISCLAIM ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, ASSOCIATED WITH ANY INJURY OR DAMAGE SUFFERED BY THE USER RESULTING FROM THE USE OF TOOLS PROVIDED BY US, OR RELIANCE ON ANY INFORMATION FOUND ON OUR PLATFORM, PLANS, FROM OR BY ANY SERVICES, PRODUCTS, OR ITEMS OBTAINED FROM OR PROVIDED BY TMG360 Media. WE DO NOT CONTROL NOR ARE WE RESPONSIBLE FOR THIRD PARTY PLATFORMS LINKED THROUGH OUR PLATFORM, PLANS, SERVICES OR PRODUCTS – WE THEREFORE DISCLAIM ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, FOR ANY INJURIES THAT RESULT FROM A USER VISITING ANOTHER PLATFORM THROUGH A LINK WE PROVIDE.THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- Exclusion of liability and indemnity Use by Agents
You agree that if any agent (including, without limitation, any consultant or employee) uses TMG360 Media’s Services, whatsoever, You nonetheless agree to be bound as a principal with respect to Your relationship with any such agent by all the terms and conditions herein.
Limitation on Liability
In no event will TMG360 Media, Our affiliates, licensors, service providers, employees, agents, officers, owners, managers or directors be liable for damages of any kind, under any legal theory, arising out of, in connection with or related to Your use or inability to use Our Services, nor for any content on or provided by our Services, nor any Services obtained by or through TMG360 Media, including any direct, indirect, special, incidental, consequential or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable. Without limiting the generality of the foregoing, TMG360 Media shall not be responsible for any Client Content uploaded to any website or otherwise provided via the Internet. The foregoing does not affect any liability that cannot be excluded or limited under applicable law.
You agree to defend, indemnify and hold harmless TMG360 Media, its affiliates, licensors, owners, and service providers, and its and their respective officers, managers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorney’s fees) arising out of or relating to Your violation of the Agreement or Your use of the Services, including but not limited to, any use of the Services other than as expressly authorized in this Agreement or Your use of any information obtained from the Services, whatsoever. You furthermore acknowledge and agree that TMG360 Media is under no obligation to attend or give testimony in court or any other governmental hearing (“Legal Proceeding”) on behalf of any party regarding any matter directly or indirectly related to this Agreement when such Legal Proceeding does not name TMG360 Media as a party.
In situations where loss or damage arises from causes beyond TMG360 Media’s reasonable control, no liability or breach shall attach or be recognized. This includes loss or damage arising from any work stoppage, power or other mechanical failure, computer virus, natural disaster, change in law or regulation or other government action, communications disruption, act of terrorism, fire, epidemic, public health crisis or other circumstances or events beyondTMG360 Media’s reasonable control.
- Default and Cure
TMG360 Media has the right to refuse its Services to any User or to terminate any User’s account with or without notice. We have the right to edit, restrict, or delete any content or information provided by any User with or without notice. User’s only right and remedy with respect to any dissatisfaction with any platform-related, product-related or service-related change or elimination is to cease its business with TMG360 Media and to end its use of Our platforms, plans, products and services,there are no refunds on any Services that TMG360 Media offers.
- Dispute Over Charges
If Client disputes any charge applied by TMG360 Media to Client’s credit card, bank account, or other account, Client shall immediately, and in no event any later than 10 calendar days from notification to Client of such charge, notify TMG360 Media by sending correspondence via email to email@example.com. Before Client takes any further action against TMG360 Media, Client shall give TMG360 Media no less than 30 days from the date of notification to make attempts to settle the dispute. Client acknowledges that 30 days is a fair and reasonable time period to resolve such disputes.If Client breaches the terms set forth here in this Section, Section E, any and all applicable service fees (including but not limited to legal fees and costs, and collection fees) which may be charged against TMG360 Media as a consequence of Client’s breach, shall be charged and applied to Client’s account, without exception.
- Refund Policy
As stated in Section D above, unless otherwise and specifically agreed to in writing, there are no refunds on any Services that TMG360 Media offers.
While this Agreement is in force, Client hereby grants TMG360 Media and its designees a non- exclusive, irrevocable worldwide, transferable, sub licensable right and license, in connection with providing the Services, to (a) use, reproduce, mirror, distribute, modify, perform and display the Client Content, as defined below (or any portions thereof), (b) use Client’s name and logo, (c) distribute the Ads and Client Content, as defined below throughout the TMG360 Media Distribution Network and (d) list, represent, register or establish accounts or keywords which may include words, terms and/or phrases proprietary to Client. (e) create and manage social media profiles and accounts, to post and respond to online content or comments, and to otherwise promote the Client’s online presence.
- Ownership; Guarantee
Client owns any content created exclusively by them (“Client Content”). With respect to content generated, created jointly by Client and TMG360 Media, TMG360 Media owns such content (to the extent other than Client Content), including but not limited to any and all data or technology produced in connection with the Services. Client may not grant any third-party access to its TMG360 Media account or share any data generated from the Services with any third party without TMG360 Media’ s prior express written consent.
Notwithstanding the above Client owns any copyrights or other intellectual property rights for any bespoke designs or works of authorship developed or created by TMG360 Media’s solely for Client under a TMG360 Media Creative engagement (collectively, the “Work Product”). Such Work Product shall be considered a work for hire, pursuant to applicable law, subject to the condition precedent that all compensation owed to TMG360 Media is paid in full and Client’s account is in good standing, prior to the assignment or deemed assignment to Client of any/all intellectual property rights in the Work Product.
Client shall own all layouts, copy, artwork, drawings, films, video tapes, negatives and materials purchased by TMG360 Media for Client and for which Client has paid, regardless of whether such materials were published or presented prior to the termination of this Agreement. Client shall not own any item for which TMG360 Media has only paid a fee for the “rights of use”. Any unused or rejected plans, ideas, or designs prepared by TMG360 Media shall remain property of TMG360 Media, and shall be used as it sees fit, provided it does not involve the release of any confidential information of Client’s business or operation procedures. Non-cancelable agreements to which TMG360 Media has committed on behalf of Client and with Client’s authorization, shall be taken over and paid by Client upon termination of this Agreement and the Client shall indemnify TMG360 Media against any claims thereof.
If Client elects not to renew a Service provided under this Agreement but nonetheless desires to continue benefiting from the Service(s) previously received — for example, if the Client wants to continue, after termination of a Service of this Agreement, to use a website, tracking number(s) and/or keywords, which were developed by TMG360 Media — then, so long as the Client has paid all accounts in full to TMG360 Media, then TMG360 Media will, within ten (10) business days after Client’s request (which request must be made within 30 days of termination of this Agreement); (a) transfer the TMG360 Media Content to Client and authorize the transfer of the website URLs to Client and hereby grants Client a revocable, non-exclusive, non-transferable, non-sub-licensable license to continue to use the TMG360 Media Content on its websites,;(b) initiate a transfer request with TMG360 Media’s tracking number vendor; and (c) provide keywords and ad copy templates to TMG360 Media.
Notwithstanding the foregoing; (a) Client may not use any TMG360 Media Content other than on its website; (b) TMG360 Media may remove third party content from the TMG360 Media Content prior to transfer; and (c) Client will remove any third party content provided by TMG360 Media as part of the TMG360 Media Content promptly after TMG360 Media’s request; and once fully paid, any Website built for You by TMG360 Media and fully paid for, will belong to you, subject to the foregoing .
You agree not to, and will not assist, encourage, or enable others to transmit any content that is unlawful or promotes unlawful conduct, violates applicable laws or regulations, that is false or defames, harasses, abuses, threatens, or incites violence towards any individual or group, violates any third party’s rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, violates the privacy of any person or that is pornographic, discriminatory, or otherwise victimizes or intimidates an individual or group on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability.
You also agree not to, and will not assist, encourage, or enable others to violate the terms of this Agreement, modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit any Work Product or Services except as expressly authorized by TMG360 Media, use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion TMG360 Media content, reverse engineer any software or Services, remove or modify any copyright, trademark, or other proprietary rights notice that appears on any TMG360 Media content, record, process, or mine information about other clients of TMG360 Media using the TMG360 Media Services, access, retrieve, or index any TMG360 Media content for purposes of constructing or populating a searchable database, reformat or frame any TMG360 Media content, attempt to gain unauthorized access to the TMG360 Media content, user accounts, computer systems or networks through hacking, password mining, or any other means, use TMG360 Media content to transmit any computer viruses, worms, defects, Trojan horses, or other items of a destructive nature, use any device, software, or routine that interferes with the proper working of any TMG360 Media content or otherwise attempt to interfere with the proper working of any TMG360 Media content, use any TMG360 Media content to violate the security of any computer network, crack passwords, or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm, remove, circumvent, disable, damage or otherwise interfere with any security-related features of any TMG360 Media content,
Irrespective of whether the restrictions above are permissible under applicable law, you agree not to act contrary to them without providing at least 30 days’ prior written notice to TMG360 Media, together with any information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion.
- Call Recording and Monitoring
For quality assurance, TMG360 Media records and/or monitors calls between Client (including the Regions) and TMG360 Media agents, employees and/or its affiliates regarding the Services (the “Service Calls”). If the Services include call recording or monitoring, TMG360 Media will record and/or monitor incoming calls and e-mails between the Region, or the Region’s agents, employees, and/or its affiliates and people who contact the Region through the tracking telephone numbers or contact forms TMG360 Media provides (the “Inbound Calls” and, collectively with Service Calls, “Call Recording and Monitoring”). By this Agreement, Client, on behalf of himself/herself/itself and each Region, consents to any and all Call Recording and Monitoring performed by TMG360 Media or its agents, employees and/or its affiliates. Client acknowledges that it, or the applicable Region, is responsible for notifying and obtaining consent to Call Recording and Monitoring from all of its agents (including employees and independent contractors) who may be recorded or monitored in a Service Call or Inbound Call (the “Recorded Persons”). It is Client’s sole responsibility to provide and/or obtain (or require each Region to provide and/or obtain), and Client covenants that it will provide and/or obtain (or require each Region to provide and/or obtain) all notices, consents, and permissions relating to Recorded Persons as may be required by applicable laws and regulations.
- Tax Liability and Tax Consequences
Client understands and agrees that portions of the charges made under this Agreement may be for items or services that are subject to sales or other taxes for which Client shall be liable, and Client agrees that TMG360 Media may make allocations of the charges to Client under this Agreement to the taxable items or services provided to Client and charge Client such taxes in addition to the other charges for Services provided for under this Agreement. Client agrees to timely pay such tax charges by the same payment due dates as the charges for the items or services that are subject to tax. In the event TMG360 Media fails to timely charge sales or other transfer taxes it may, after the fact, charge Client applicable taxes, and Client agrees to pay such charges within 30 days of receipt of TMG360 Media’s invoice. Client acknowledges and agrees that state, local, and other taxes vary from jurisdiction to jurisdiction and the application of this provision is without prejudice to any such tax liability and/or tax consequence variation.
- Termination of Agreement; Cancellation and Suspension of Services
This Agreement shall become effective on the Effective Date, or on the date when the commitment period for the Service(s) which the Client purchases, begins (“Commencement Date”), as may be set out in a purchase order, separate agreement, or otherwise agreed upon, and shall remain in effect until terminated as set forth herein (the “Term”). Once the Commitment Period has ended, the Term will continue month to month thereafter, and Client will be billed the applicable monthly fees on a monthly recurring basis, until the Agreement is terminated. Any applicable agreement for Service(s) between Client and TMG360 Media may be canceled after the Commitment Period has ended by emailing TMG360 Media with a written cancelation request to firstname.lastname@example.org. Once the written cancelation request is received by email, the agreement for Service(s) which Client seeks to cancel will be canceled one (1) calendar month subsequent to the end of the monthly billing cycle during which the notice is received.
- Forum Selection & Choice of Law
Claims by You
Any claim You have against TMG360 Media, its officers, directors, shareholders, agents, or employees, arising out of Our Services, this Agreement, or any other agreements whatsoever entered into by You and Us, will be governed by and construed in accordance with the laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or the USA, or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of California. For any claim brought by You against TMG360 Media, you hereby attorn to the exclusive jurisdiction of the courts of the State of California, at Los Angeles.
Claims Against You
Any claim that We have against You, Your agents, or Your affiliates, will, at the sole unfettered discretion of TMG360 Media, be; a) governed by and construed in accordance with the laws of the State of California, and of USA and subject to the jurisdiction of the courts of the State of California at Los Angeles; or b) governed by and construed in accordance with the laws of any jurisdiction where TMG360 Media decides to bring a legal proceeding against you, including but not limited to where You are located, and any such proceeding shall be subject to the jurisdiction of the courts of such jurisdiction attorn to same, without giving effect to any choice or conflict of law provision or rule (in such jurisdiction or otherwise) that would cause the application of laws other than those of that jurisdiction.
In any such legal proceeding whether brought by You or by Us, the prevailing party shall be awarded its reasonable actual and reasonable legal fees and costs. Any dispute that arises from Your use of Our Services shall be solely between You and TMG360 Media, and so far as is legally permissible, no dispute or proceeding shall be joined with any other or decided on a class-action basis. Notwithstanding anything herein to the contrary, if a breach of this Agreement or any other entered into by You and TMG360 Media has the potential to cause irreparable harm to Us, You agree that We have the right to seek any and all equitable relief legally permissible.
- Independent Contractor
Nothing contained herein or any document executed in connection herewith, shall be construed to create an employer-employee relationship, a partnership or joint venture between Client and TMG360 Media. TMG360 Media is an independent contractor and not an employee of Client or any of its subsidiaries or affiliates.
- Modification Of Agreement
The terms of this Agreement are subject to change by TMG360 Media without notice and therefore, the User should frequently review this Agreement from time to time at http://tmg360media.com/terms-and-conditions. Your continued use of Our Services after revision to this Agreement are made and posted will be deemed Your acceptance of the new terms.
- Waiver and Severability
No waiver by TMG360 Media of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Agreement will continue in full force and effect.
Client may not assign this Agreement or any interest herein without TMG360 Media’s express prior written consent. TMG360 Media may assign this Agreement, in whole or in part, and the parties’ rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns.
- Electronic Signatures
In connection with Your use of Our Services, when You select an “I agree” or equivalent checkbox, You thereby agree that such action constitutes an electronic signature as defined by the Electronic Signatures in Global and National Commerce Act (“E-Sign”), the Uniform Electronic Transactions Act (“UETA”), or any similar electronic signature law adopted in any jurisdiction, and therefore You have formed and executed acceptance of such agreement for purposes of E-Sign. You further represent and warrant that You have the legal right, power and authority to enter into such agreement on behalf of Yourself or the individual or other entity on whose behalf you are acting while purchasing and using any TMG360 Media Service. You understand that an electronic signature is the legal equivalent of having placed a handwritten signature on an agreement and that You accept the terms referred to therein. You understand and agree that by electronically signing any agreement for Service, You are agreeing to be bound by this Agreement as well as all the terms referred to herein.
TMG360 Media uses email to communicate with its Clients. You hereby authorize and agree that TMG360 Media may communicate with You via the email address We have on file for You, and sending emails from TMG360 Media to the email we have on file for You constitutes proper notification to any changes in the Agreement or otherwise. Unless otherwise instructed in this Agreement, the Client shall send any notices contemplated under this Agreement to TMG360 Media’ s email address at: email@example.com.
Information you submit. We may store the information you submit to us. We use the information to facilitate your use of the Services, provide functionality, improve quality, personalize your experience, provide customer support, back up our systems, and comply with legal obligations. Among the information you submit please note:
Credit Card Purchases: We, or a third-party processor, may collect and store billing and credit card information. This information will only be shared with third parties who perform tasks required to complete the transaction. When you submit credit card numbers, we, or a third-party processor, encrypt that information using industry standard technology.
Information we collect. In addition to the information you submit to us, we also collect and store information from and about you in the course of your use of the Services. We use this information to analyze and track user behavior, personalize your experience, enhance functionality, improve quality, and may use it to display relevant advertising or services. For example:
Location: We may collect and store information about your location if you enable your computer or mobile device to send us location information. You may be able to change the settings on your computer or mobile device to prevent it from providing us with such information.
Activity: We may collect and store information related to you and your use of the Services including without limitation your browser type, IP address, unique device identifier, requested URL, referring URL, browser language, the pages you view, the date and time of your visit, and other information typically tracked by Google Analytics.
Service Providers: We outsource some of our technical and customer support, tracking and reporting functions, quality assurance testing, payment processing functions, and other services to third parties. We may share information from or about you with them so that they can perform their services.
Investigations: We may investigate and disclose information from or about you to third parties if we have a good faith belief that such investigation or disclosure is reasonably necessary to: (i) take action regarding suspected illegal activities; (ii) enforce or apply our Terms; (iii) help prevent, investigate, or identify possible wrongdoing in connection with the Site; (iv) comply with legal process or other government inquiry, such as a search warrant, subpoena, statute, judicial proceeding, or other legal process served on us; or (iv) protect our rights, reputation, and property, or that of our Users, affiliates, or the public. If you use the Services outside of the United States, you consent to having your personal data transferred to and processed in the United States.
Links: While the Site may contain links to unaffiliated third-party websites, we do not vouch for or make any representations regarding such unaffiliated third-party websites. Except as set forth herein, we do not share your personal information with them and we are not responsible for their privacy practices. We suggest you read the privacy policies on all such third-party websites.
Security. We follow generally accepted industry standards to protect the personal information submitted to us, both during transmission and once we receive it. No method of transmission over the Internet or via mobile device, or method of electronic storage, is 100% secure, however. Therefore, while we use commercially acceptable means to protect your personal information, we cannot guarantee its absolute security.
Email Communications. We use email and electronic means to stay in touch with You. You consent to receive communications in an electronic form via the email address you have submitted or via the Services; and agree that all Terms, agreements, notices, disclosures, and other communications provided to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. This section does not affect your non-waivable rights.
- Entire Agreement
This Agreement together with other terms and conditions or agreements entered into between TMG360 Media and You regarding the Services purchased, including but not limited to any Order Forms and Master Subscription Agreements (“User-Specific Terms”), constitute the sole and entire agreement between You and TMG360 Media with respect to the Services provided, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Services. In the event of a conflict between this Agreement on the one hand, and User-Specific Terms, or any other agreement properly entered into, the terms and conditions set forth in the User Specific Terms or more specific agreement shall govern.