Terms of Sale

Marketing by Emma - Terms of Sale

These terms and conditions (the "Agreement") are effective by and between Holey Dough LLC dba Marketing by Emma, a Missouri Limited Liability Company ("Service Provider") and the individual or entity ("Customer") procuring services under the Terms of this Agreement.

WHEREAS, Marketing by Emma provides marketing services to its Customers for the purpose of helping companies strengthen sales of products, services, and software (the “Services”); and

WHEREAS, Customer desires to engage Marketing by Emma to provide Customer with one or more of Marketing by Emma’s Services, which Services are more fully described on Marketing by Emma’s website;

NOW, THEREFORE, in consideration of the mutual covenants, agreements, warranties, and representations made and contained herein, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, Marketing by Emma and the Customer hereby agree the Services will be performed in accordance with the following terms and conditions.

    • This Agreement comprises the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
    • These Terms prevail over any of Customer's general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.
  1. Services. Customer hereby retains Service Provider to provide, and Service Provider hereby agrees to provide one or more of the Services, which specific Service(s) to be provided hereunder shall be selected by the Customer on Service Provider’s website. The Services being provided by Service Provider are on a non-exclusive basis, and Service Provider shall be entitled to perform or engage in any activity not inconsistent with or otherwise prohibited by this Agreement, including, but not limited to entering into agreements similar to this Agreement with third parties, which third parties may include any competitor of the Customer. In addition to the terms and conditions set forth in this Agreement, Customer also agrees that Customer’s (i) receipt of the Services; and (ii) relationship with Service Provider, shall at all times be in conformance with Service Provider’s Terms of Service and Privacy Policy, each of which are available on Service Provider’s website.
  2. Performance Dates. Service Provider shall use reasonable efforts to complete the selected Services within fourteen (14) business days after payment is received and all Customer Obligations have been timely completed pursuant to Section 4 of this Agreement. Estimated completion dates for the Services shall be indicated by Service Provider via email after payment is received. Notwithstanding the foregoing, Service Provider makes no guarantee of completion of the Services within fourteen (14) business days, and, in certain cases, Service Provider may require more than fourteen (14) business days to complete the Services (which shall be communicated to the Customer) depending on the nature and complexity of the work.
  3. Customer's Obligations. Customer shall:
    • respond promptly to any Service Provider request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement, including but not limited to:
      • The Project Questionnaire, which must be submitted within three (3) business days of the date of payment for Services. Delay in sending the Project Questionnaire may affect the completion date of the Services.
    • provide such customer materials or information before Services commence that Customer has reason to know (or as Service Provider may reasonably request) that Service Provider will need to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects. Any Customer materials or information that are transferred after Services have begun that will cause substantive changes (in the reasonable opinion of Service Provider) to the Services may bear additional charges; and
    • obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
      • review the work product of the chosen Services and accept full responsibility and liability for all final work product and any resulting outcomes of the Services that are accepted by Customer. Customer may request reasonable revisions to the work product and/or Services subject to Section 6. For the avoidance of doubt, Services and resulting work product shall be deemed final and accepted by Customer when they are expressly accepted by Customer, used by Customer in the course of business, or impliedly accepted in some other way.
      • make the final determination as to the suitability and legality of the use of the Services and resulting final work product for their business and compliance with any third-party rules, terms, or laws.  
      • Indemnify, defend, and hold harmless Service Provider and its directors, officers, and employees from all claims, actions, and demands (“Claims”), and shall pay any resulting liabilities, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) incurred (collectively, “Losses”) insofar as such claims are related to:
        • Claim that the Services or work product that is used in the Customer’s course of business caused a loss of revenue or rejection/removal of a product listing;
          • Claim that the Customer’s use of the Services or Customer’s product/service infringes any patent, trademark, copyright, trade secret, database right, or other intellectual property or proprietary right of any third party;
          • a Claim related to Customer’s breach of this Agreement or Service Provider’s Terms of Service;
          • a Claim that Customer’s use of the Services or Customer’s product/service fails to comply with any applicable terms, rules, or laws.
          • any act or omission by Customer that constitutes fraud, bad faith, gross negligence or willful misconduct;
          • any injury or damage to persons or property caused by the Customer, Customer’s use of the Services, or Customer’s product/service; or
          • Customer’s breach of its confidentiality obligations.
  4. Customer's Acts or Omissions. If Service Provider's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
  5. Revisions/Change Orders.  
    • All requests for revisions must be made within Seven (7) calendar days of the delivery of the completed Services and shall be completed at the sole discretion of Service Provider.  
    • If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. All requests for changes to the scope of the Services are subject to Service Provider’s professional judgment and Service Provider reserves the right to deny any request for changes of the initially requested Services (“Initial Services”). In the event Service Provider denies any request for a change in the Initial Services, Customer shall be fully responsible for payment for the Initial Services and no refunds shall be issued. Service Provider may, at its discretion and within a reasonable time after a request to change the scope or performance of the Services, provide a written estimate to Customer of:
      • the likely time required to implement the change;
      • any necessary variations to the fees and other charges for the Services arising from the change;
      • the likely effect of the change on the Services; and
      • any other impact the change might have on the performance of this Agreement.
    • Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a "Change Order"). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with this Agreement.
    • Notwithstanding Section 6(a) and Section 6(b), Service Provider may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates previously agreed upon.
    • Service Provider may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis.
  6. Fees and Expenses; Payment Terms; Credits; Interest on Late Payments.  
    • In consideration of the provision of the Services by Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the charges and fees set forth on the Service Provider’s website, Invoice, Order Confirmation, and/or Change Order.
    • As applicable, Customer agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services.
    • Customer shall pay all invoiced amounts due to Service Provider within thirty (30) calendar days from the date of Service Provider's invoice. Customer shall make all payments hereunder in US dollars.
    • In the event Customer opts not to move forward with a chosen Service for any reason following Customer’s payment for such Service (and prior to Service Provider’s commencement of work on the Service), Customer is entitled to a pro rata credit for the value of the Service valid for a period of one year from the date of initial payment. No refunds will be issued.
    • In the event payments are not received by Service Provider after becoming due, Service Provider may:
      • charge interest on any such unpaid amounts at the maximum rate permitted under applicable law, from the date such payment was due until the date paid; and
      • suspend performance for all Services until payment has been made in full.
  1. Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder.
  2. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Service Provider in the course of performing the Services (collectively, the "Deliverables") shall be owned by Service Provider. Service Provider hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services. Furthermore, Customer shall not:
    • modify, copy or create derivative works based on the Services;
    • frame or mirror any content forming part of the Services;
    • reverse engineer, decode, reproduce, redesign, disassemble or decompile the Services; or
    • otherwise use the Services in order to:
      • build a competitive product or service, or
      • copy any ideas, features, functions or graphics of the Services.
    • The prohibitions contained in subsections (a) and (c) of this paragraph shall not apply to any deliverables provided by Service Provider pursuant to the provision of Product Branding, e-Commerce Listings, Blog Posts, and Packaging Design Services, if Customer has elected to receive such Services.
  3. Confidential Information.  
    • All non-public, confidential or proprietary information of Service Provider, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), disclosed by Service Provider to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Service Provider. Confidential Information does not include information that is:
      • in the public domain;
      • known to Customer at the time of disclosure; or
      • rightfully obtained by Customer on a non-confidential basis from a third party.
    • Customer agrees to use the Confidential Information only to make use of the Services and Deliverables.
    • Service Provider shall be entitled to injunctive relief for any violation of this Section.
  4. Representation and Warranty.  
    • Service Provider represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
    • The Service Provider shall not be liable for a breach of the warranty set forth in Section 11(a) unless Customer gives written notice of the defective Services, reasonably described, to Service Provider within ten (10) calendar days of the time when Customer discovers or ought to have discovered that the Services were defective.
    • Subject to Section 11(b), Service Provider shall, in its sole discretion, either:
      • repair or re-perform such Services (or the defective part); or
      • credit or refund the price of such Services at the pro rata contract rate.
    • THE REMEDIES SET FORTH IN SECTION 11(c) SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).
  5. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(A) ABOVE, SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.(E) WARRANTY THAT ANY SERVICE OR RESULTING WORK PRODUCT OF SERVICE PROVIDER WILL HAVE THE EFFECT OF MAINTAINING, INCREASING, OR IMPROVING THE FINANCIAL STANDING, REVENUE, PROFITABILITY, OR ANY OTHER FINANCIAL METRIC OF CUSTOMER OR RELATED PRODUCTS; (F) WARRANTY THAT ANY SERVICE OR RESULTING WORK PRODUCT OF SERVICE PROVIDER WILL COMPLY WITH ANY OR ALL THIRD PARTY TERMS, RULES, OR LAWS; OR (G) WARRANTY THAT ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO AMAZON, WILL ACCEPT OR APPROVE THE WORDING, LANGUAGE, OR OTHER WORK PRODUCT OR SERVICE PROVIDED BY SERVICE PROVIDER TO CUSTOMER; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
  6. Limitation of Liability.  
    • IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • IN NO EVENT SHALL SERVICE PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  7. Termination. In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
    • fails to pay any amount when due under this Agreement and such failure continues for fifteen (15) calendar days after Customer's receipt of written notice of nonpayment;
    • has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
    • becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
  8. Effect of Termination. Customer shall pay Service Provider for all Services rendered and work performed up to the effective date of Termination.
  9. Waiver. No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  10. Force Majeure. The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
  11. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
  12. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  13. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
  14. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule (whether of the State of Missouri or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Missouri.
  15. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Missouri in each case located in the City of Columbia and County of Boone, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
  16. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
  17. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  18. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement.
  19. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
Liquid error: Could not find asset snippets/bk-tracking.liquid