Terms of Use
FULL LEGAL VERSION OF AUSTEN AGENCY TERMS OF USE
These Terms of Use (“Terms”) govern your use of Austen Agency (“Austen Agency”) website (the “Site”). Please read the Terms before using the Site. Use of the Site constitutes your agreement to all Terms. If you object to anything in these Terms or the Site’s Privacy Policy, please do not use the Site. The Terms are subject to change at any time, effective upon posting on the Site.
PRIVACY AND PROTECTION OF PERSONAL INFORMATION
Austen Agency strives to protect all client data and information at all times within our systems through the use of third party tools such as McAfee Live Safe, Microsoft Windows Security, and password-protected WiFi. The Client acknowledges that Austen Agency is not responsible nor liable for their information within the third party tools that we may recommend and that Client may purchase for use within their digital marketing strategy. Upon Service Agreement termination, Austen Agency preserves Client information and notes for up to one year. We strictly prohibit the sharing of your information to third parties without Client consent.
WEBSITE CONTENT
All content available on the Austen Agency Site is the copyrighted work of Austen Agency. Any reproduction or redistribution of this Site, in whole or in part, without the written permission of Austen Agency is expressly prohibited by law, and may result in civil and criminal penalties.
LINKS TO THIRD PARTY SITES
Links from the Site to other sites on the Web, if any, are provided as an information service only. It is the responsibility of the user to evaluate the content and usefulness of the information obtained from other sites. Austen Agency does not control such websites, and is not responsible for their content. Users further acknowledge that use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use for those websites, and not by Austen Agency’s Terms of Use and Privacy Policy. All users do hereby agree to hold Austen Agency harmless from any liability that may result from the use of links that may appear on the Site.
AUSTEN AGENCY CLIENT TERMS AND CONDITIONS
For purposes of these Austen Agency Client Terms and Conditions (“Terms”), “Austen Agency”, “we” or “our” refers to Austen Agency, and “Client,” “you” or “your” refers to your company. Please read these Terms carefully as they, together with your signed Estimate (hereinafter “Service Agreement”) and any Change Orders constitute your entire agreement with Austen Agency (hereinafter the “Agreement”). By engaging Austen Agency to provide services to you, you agree to be legally bound by these Terms. Austen Agency 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.austenagency.com/terms. Unless otherwise specified, any changes or modifications will be effective immediately upon posting on the website and your continued use of Austen Agency’s services after such time will constitute your acceptance of such changes or modifications.
1. Client Contact: Austen Agency will need at least one point of contact from you for responsive communications, either daily, weekly, or monthly. This person will be responsible for gathering your company’s data, files, or other content required for Austen Agency to complete its deliverables; attending calls or meetings at key intervals with Austen Agency; and coordinating internal communications with your team regarding the status of the project. They will receive all communications from Austen Agency. Unless another individual is expressly designated in the Service Agreement as your company’s point of contact to whom Austen Agency 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 Austen Agency 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, Austen Agency will move forward with work authorized by this point of contact and Client shall be responsible for payment for such services.
2. Deadlines: Client is responsible for meeting time deadline(s) associated with Austen Agency’s performance of the deliverables which may include but are not limited to deadlines for providing content and/or approvals. Austen Agency is not responsible for late deliverables resulting from Client’s failure to meet time deadlines specified by Austen Agency. 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 Austen Agency will not be considered to have failed to meet the deadline set forth in the original Service Agreement for that project.
3. Content: Unless otherwise specifically stated as a part of the deliverables in the Service Agreement, Client is responsible for providing or approving of all content necessary for Austen Agency’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 Austen Agency assumes that content will be readily provided to Austen Agency in a manner specified by Austen Agency, in acceptable format(s), and that Austen Agency 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 Austen Agency must locate, aggregate, organize or create content on Client’s behalf in a way that is not outlined in the Service Agreement, Client will be charged for such additional time at a rate of $100/hour. Logos, graphics, and/or photographic images should be supplied in an electronic acceptable format, such as high-resolution jpeg.
4. If written copy is not addressed in the Service Agreement and Client requires Austen Agency to write copy for inclusion in the deliverables, the cost is $100 per hour. In the case where Client is responsible for but has failed to provide written content to Austen Agency to allow it to perform the deliverables under this Agreement and Austen Agency therefore must obtain written content from other sources, Austen Agency 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 Austen Agency in connection with its provision of the deliverables before publication. Client must ensure that the content is factually accurate and not false or misleading.
5. Where Client is providing content, Client shall be responsible for obtaining all required licenses, permissions and/or approvals for use of such content. Client warrants and agrees that where it has provided content to Austen Agency, 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 Austen Agency. 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 Austen Agency a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely in connection with Austen Agency’s performance of the services and the production of the deliverables.
Where Austen Agency has agreed to develop website, video, web, mobile or social media deliverables, 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 Austen Agency. Client may either purchase or license those items on their own or Austen Agency may purchase/license them on Client’s behalf. If Client has not specified that it would like to license these items on their own, Austen Agency will assume that it should license them and will invoice Client for same. Third party items that Client (or Austen Agency on behalf of Client) licenses from a third party to be placed deliverables created by Austen Agency 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, Austen Agency 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.
6. Design: Unless otherwise specifically stated as a part of the deliverables in your Service Agreement with Austen Agency, if Client has engaged Austen Agency to design a website, mobile site, ad, press release, email template or the like, Austen Agency will provide two first impression 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, Austen Agency 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 hourly rate.
7. 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 Austen Agency or in a Change Order form. If no amount has been specified, Client will be billed at the rate of $100/hour.
8. Third party providers: Client will pay directly for all third party costs, including but not limited to domain name purchases and renewals, website hosting fees, email marketing platforms such as Mailchimp or Squarespace, CMS (content management system) licenses such as WordPress, social media platforms, and all other platforms.
9. Branding Clients: If Client has engaged Austen Agency to assist with business name selection, logo creation or slogan creation, please be advised that Austen Agency 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 Austen Agency cannot provide legal advice to its clients. Austen Agency encourages Client to retain an attorney to assist in this process.
10. Search Engine Optimization Clients:
Client acknowledges the following with respect to SEO services from Austen Agency:
1. Austen Agency 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.
2. Due to the competitiveness of some keywords/phrases, ongoing algorithm changes, and other competitive factors, Austen Agency does not guarantee specific rankings or search engine results page positions for any particular keyword, phrase, or search term.
3. 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.
4. Engaging in link schemes, link exchanges or buying links can negatively impact your site’s rankings. Austen Agency does not assume liability for Client’s choice to link to or obtain a link from any particular website without prior consultation, nor does Austen Agency assume liability for ranking, traffic, indexing issues related to such penalties.
5. SEO can 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.
6. Austen Agency is not responsible for changes made to the website by other parties that adversely affect the site’s visibility in search engine results.
7. Austen Agency 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 Austen Agency or without the prior consultation of Austen Agency.
8. Austen Agency 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.
11. Advertising Clients:
Client acknowledges the following with respect to media/advertising services from Austen Agency:
1. Austen Agency accepts no responsibility for policies of advertising networks, media outlets, third-party search engines, directories or other web sites that Austen Agency 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 Austen Agency responsible for any liability or actions taken by third-party resource under this Agreement.
2. Austen Agency does not guarantee position, consistent positioning, or specific placement for any particular paid press release, story pitch, search keyword, phrase or search term. Client acknowledges that Austen Agency’s past performance is not indicative of any future results client may experience.
3. 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 Austen Agency to adhere to these changes. The Client may be charged an additional fee for making these updates, based on the hourly rate of $100 per hour.
4. Client acknowledges that any advertising networks, media outlets, search engines, directories or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time.
5. Client acknowledges that advertising networks and media outlets may drop listings from its database or publications for no apparent or predictable reason.
6. Austen Agency will endeavor to make every effort to keep Client informed of any changes that Austen Agency is made aware of that may impact any of the Paid Media Campaign and Strategy and the execution thereof under this Agreement.
7. Client acknowledges that Austen Agency cannot guarantee the exact placement of Client’s advertising; its availability or availability related to the funds in the Client’s account.
8. 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 Austen Agency.
9. Pre-payment for media/liability for payment. Where Client has engaged Austen Agency 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, Austen Agency must receive payment for the media/advertising prior to the media/advertising running. (Austen Agency will typically issue an invoice for media budget and media management services the month before the media is scheduled to run.) If Austen Agency 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 Austen Agency has not received payment for the media/advertising but nonetheless allows the media/advertising to run, Client will remain responsible to Austen Agency and/or the advertising/media vendor for payment of same, notwithstanding the existence of any insertion order or contract between Austen Agency and the advertising/media vendor.
12. PR clients:
1. While Austen Agency uses its best efforts to get a Client’s press release(s) or story pitch published, Client acknowledges that the decision to accept a story pitch or press release remains with the publishing source and Austen Agency cannot therefore guarantee that a story or press release will be published or when it will be published.
2. Client acknowledges that PR Monitoring, proactive story pitches and press releases are customized, ready-to-go templates with approval of client, and are subject to quick adaptation as needed by Austen Agency based on the media source’s needs and deadlines.
3. Client acknowledges that Austen Agency adaptations to pitches and press releases are done in a good faith effort to represent the client and their offerings; Austen Agency uses a variety of written and contextual content to make these adaptations.
4. Austen Agency is not liable for any misrepresentations shared to media under any public relations Service Agreement.
5. Austen Agency is not responsible for media sources such as reporters, networks, publications correctly listing client name, website, offerings or other content even if it was represented on the pitch or press release.
6. Client acknowledges that they are fully responsible for their own words and explanations and quotes in any interviews, written, audio, or video with any media sources.
13. Online Reputation Management clients:
1. Client acknowledges that although Online Reputation Management Services can greatly enhance or protect a Client’s online reputation, the Client is ultimately responsible for their online reputation.
2. While Austen Agency works to promote a good online reputation for its clients and representing them in various forums in an anonymous way to the level stated in the Service Agreement, whether it be responding in an agreed-to way for inquiries, negative reviews, and positive reviews, Austen Agency is dependent upon Client to approve response messages in tone and wording, and that Austen Agency is not responsible for customer reactions, or for claims in customer reviews regarding the Client’s work.
Ownership:
1. Client Content: Client Content is written or visual content that is provided by Client to Austen Agency 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 Austen Agency a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely regarding Austen Agency’s performance of the services and the production of the deliverables.
2. Third Party Materials: The owners of third party components components shall retain ownership of these items in accordance with their Terms and Conditions, licensing agreements, or other applicable agreements. Upon request, Austen Agency shall provide Client with a listing of third party components used in the deliverables and the source(s) of such components.
3. Designs/Written Copy: Upon completion of the deliverables and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Austen Agency designates to Client all ownership rights, including any copyrights, in any artwork, designs or written copy Austen Agency has created for Client as a part of its deliverables.
4. Websites: Upon completion of the deliverables and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Austen Agency shall assign to Client all ownership rights to the front end design of any website, web or mobile applications. Client agrees to grant Austen Agency the Administrative level of permissions if Client wishes Austen Agency to be able to access and make changes to the website under an Austen Assist subscription and/or individual project/Service Agreement.
5. Changing Hosts: Should Client wish to move its website/web application to another server/host from the original hosting source, Client as the website owner is able to port its site over; however, Client should be advised that sites may not port over to certain servers and/or the site may lose certain functionalities on certain servers. Austen Agency is not responsible for any design or functionality on any different platform.
Term and Termination: Unless otherwise specified in the Service Agreement, the Service Agreement between Client and Austen Agency shall be effective as of the date that Client executes the Service Agreement and shall continue in effect for the duration of the term. A Service Agreement may only be terminated prior to the end of a term as follows:
1. Breach. Either party may terminate a Service Agreement in the event of a material breach by the other party if such breach continues uncured for a period of thirty (30) calendar days after written notice of the breach.
2. Either Party may, in its sole discretion, terminate this Agreement in the event the other party files for bankruptcy, or is subject to involuntary bankruptcy.
3. Effect of Termination on Payment. In the event of Client’s termination of this Service Agreement for claimed breach by Austen Agency, Client shall pay Austen Agency for all previously issued unpaid invoices, out-of-pocket expenses incurred by Austen Agency, as well as for services rendered up to the date of termination (such date being thirty (30) days after receipt of notification of the breach) that may or may not yet have been invoiced. If the payment schedule in the Service Agreement is milestone or project-based, rather than hourly or monthly fee-based, Austen Agency will determine the number of hours of work performed beyond the last completed (and paid for) milestone or the number of hours expended toward completion of the project beyond what has already been paid for by Client and will invoice Client at the rate of $100/hour for those hours. Austen Agency shall provide the Client with an invoice within thirty (30) days of the effective date of the termination. The client shall pay the invoice within fourteen (14) days of receipt. Such payment shall not affect Austen Agency’s right to pursue other potential damages relating to the client’s termination.
4. Survival of Provisions. Notwithstanding the foregoing, the portions of this Agreement relating to Taxes, Indemnity, Warranties, Limitation of Liability, Governing Law and Venue, Force Majeure, Waiver, and Counterparts shall survive termination of this Agreement.
Financial & Legal:
1. Taxes: Client will pay, reimburse, and/or hold Austen Agency harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and duties (other than as related to Austen Agency’s income), whether international, national, state, or local (however designated), which are levied or imposed by reason of the performance of the deliverables.
2. Payment: Unless otherwise set forth in the Service Agreement, payment will be due within 30 days. Unless otherwise set forth in the Service Agreement, all ongoing monthly program costs will be billed on the first day of the month for the prior month’s services. All Subscription services fees pay for the month ahead, and automatic renewal and payment takes place on the day of each month of the original purchase.
3. Billing for media spends will be on the first of the month in the month prior to when the spend is to occur. In the case where Client has terminated a Service Agreement involving recurring monthly program costs or a marketing retainer, Client will be billed for the full month of services if the termination date occurs after the first of the month (e.g., Client gives notice on May 15th of desire to terminate; Client will be billed for April and May due to the 30-day notice period). All payments made to Austen Agency shall be in U.S. Dollars in the form of options provided in the invoice. Payments not made within 30 days of the date of invoice may be subject to late charges of 5% of the overall amount, unless waived or reduced by Austen Agency at our own discretion. If Client fails to timely pay the amounts due during the development or delivery of the deliverables pursuant to this paragraph and/or the payment terms set forth in the Services Agreement, Austen Agency retains the right to stop work and/or suspend services after five (5) days’ written notice (email communication sufficient) until payment is made. Further, Austen Agency shall retain full ownership over the deliverables (whether completed or not) until full payment is received. Client shall reimburse Austen Agency for any related expenses. Austen Agency will advise Client if travel expenses are expected to exceed $100.
4. Indemnity: Client agrees to indemnify and hold harmless Austen Agency, its owner and any third party contractors 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 Austen Agency’s use of materials furnished by Client (including but not limited to, logos, slogans, trademarks, written content, photographs, video, music and fonts). Information or data obtained by us from you to substantiate claims made in marketing deliverables shall also be deemed to be “materials furnished by you.” Such claims may include claims for invasion of privacy, defamation, patent, trademark copyright or other intellectual property claims. Additionally, Client agrees to indemnify and hold harmless Austen Agency, its owner and any third party contractors 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, relate to business ideas, innovations, concepts, websites, web-based applications and the like that Client has generated and has asked Austen Agency to develop or implement. For example, if you have an idea for a product or service, and it is determined that the application’s functionality violates another company’s patent, you will indemnify Austen Agency for any claims instituted by the third party. Austen Agency 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 Austen Agency and asked Austen Agency to create deliverables for are compliant with applicable federal, state and local laws, rules and regulations.
Other Terms:
1. Limitation of Liability: IN NO EVENT SHALL AUSTEN AGENCY 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 AUSTEN AGENCY’S PRODUCTS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF AUSTEN AGENCY EXCEED ANY COMPENSATION PAID BY YOU TO AUSTEN AGENCY FOR ITS PRODUCTS OR SERVICES.
2. Disclaimer of Warranty: THE PRODUCTS AND SERVICES ARE PROVIDED on an “AS IS” and “AS AVAILABLE” BASIS AND AUSTEN AGENCY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Austen Agency strives to exceed Client expectations, however, since marketing results can be influenced by various external forces outside of Austen Agency’s control, Austen Agency cannot guarantee specific results or return on investment. Further, Austen Agency shall have no responsibility to fix any issues that arise after the go live date where: 1) the Client or Client’s designees have gone into the website or 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. Additional work may be requested by Client under separate contract at then current billing rates. Unless otherwise specifically noted in the Service Agreement, Austen Agency 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.
3. Governing Law/Venue: This Agreement shall be governed by and construed in accordance with the internal laws of the State of California 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 Sacramento, California.
4. 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 Austen Agency 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.