Contract Terms of Service
Strategic Market Solutions, LLC (“Us”, “Our”, “We”, “TotalWeb Partners”, “TotalWeb”, “TWP”, “SMS”)
The Corporation, Person, or Organization operating as a single Entity entering into an agreement with Us (“Client”, “You”)
The written Agreement executed by Strategic Market Solutions, LLC on behalf of the signed Client (“Contract”, “Agreement”, “Service”)
If a credit card was provided – the Client hereby agrees to these Terms and Conditions and authorizes Strategic Market Solutions, LLC and their payment partners to charge and collect the provided credit card for the first payment and subsequent payments.
If a credit card was not provided – the Client hereby agrees to these Terms and Conditions and will process a check payable to Strategic Market Solutions, LLC for the first payment and agrees to make subsequent payments for the contracted services per the terms and timing of the executed Agreement.
If You provide a credit card for payment and charges are rejected by Your credit card company for any reason, We hereby provide notice that We reserve the right, and You authorize Us, to continue to attempt to secure payment through that credit card, and any other on file, for as long as unpaid balances remain on Your account. Unpaid balances include, but are not limited to, the contract balance, additional fees incurred on top of the contracted price, late fees, labor costs, etc. In the event that a third party orders on behalf of You and the named third party does not discharge payment of the invoice prior to the last day of the show, charges will revert back to You. All invoices are due and payable upon receipt by either party. You agree these Payment terms supersede any prior or post-made agreements naming the responsible party for payment. You agree all parties shall be jointly and severally liable for all incurred payment.
Payments will be due per the specific terms of the executed Contract or Agreement. Failure to provide timely payments will incur a $75 per month late charge and may result in service termination at Our discretion, without notice. You hereby indemnify Us of legal recourse and damages incurred from the termination of Our services to the fullest extent of the law. If a Contract is canceled by TotalWeb for nonpayment, the client will be responsible for the entire agreed-upon value of the Contract, including monthly services for the minimum term plus collection and legal fees.
All monies collected or charged as a result of services rendered, in part or in full, to the Client are irrevocable and non-refundable. Payment is non-creditable except where explicitly written, at the written request of the Client and discretion of Strategic Market Solutions, LLC. Payment(s) deemed creditable by Us will stay in the possession of Strategic Market Solutions, LLC. and will act as a retainer for payment of future agreed-upon services.
TWP and SMS Contracts are only cancellable within 5 days of execution and thereafter can only be terminated after the Contract Minimum Term (12 months unless otherwise specified by Us in the Contract) by providing written notification of cancellation to TotalWeb Partners, taking effect 30 days after the date of the written notification. If there are multiple Contract Minimum Terms, the longer of the minimum terms shall apply. All Service payments must be current to cancel a Contract, including but not limited to hourly Service charges, period-based Service charges (ex: monthly, quarterly, bi-annually, annually, etc.).
Upon receipt of notification, We will cease all hourly work, with the exception of written requests to make end-of-life changes regarding the Service. Period-based charges will continue until payment is made in full of the current Contract balance.
For Physical Notices: Notification is rendered starting on the date We actually receive delivery of the Notice at the Clio, MI address.
For Digital Notices: Notification is rendered starting on the date We actually receive delivery of the digital Notice to Our mailbox as logged by our email provider in the email header. Digital Notification may only be provided via email.
Production & Client Interaction:
TotalWeb Partners agrees to provide resources to fulfill the Services outlined within this Contract and the Client agrees to assign knowledgeable company contacts to be available for the interaction steps as outlined as well as providing necessary company information to complete the contracted Services. Should the client fail to provide the information required within 60 days of the first written request from TotalWeb Partners, TotalWeb Partners will have the option to initiate billing for services that are awaiting the Client’s input.
Domain & Data Ownership:
Domain & Data Ownership: Domains, online profiles, and the website’s database(s) (“Data”), will become the unencumbered digital property of the Client upon full Contractual payment. The Client’s Data may only be linked to and published by Strategic Market Solutions, LLC (and their subsidiaries, successors, employees, and independent contractors) for demonstration purposes. TotalWeb agrees to turn over all Data and its corresponding credentials to the Client after the Contract Minimum Term upon written request by the client, provided all payments are current, including but not limited to late fees, administrative fees, and collection fees.
Any data housed inside of your website’s parent folder (generally “/httpdocs/”) will become Yours, including copyright as defined in 17 U.S.C. §101. This generally includes Your Website; its pages; its images; its database; uploaded files originally of Your copyright, or authorized use; files of service and/or product specification will become Your property (after the Contract Minimum Term upon written request by the client, provided all payments are current, including but not limited to late fees, administrative fees, and collection fees.)
You agree that all notices, disclosures, agreements, and other communications we provide to you electronically meet the legal requirements that such communications be in writing.
External Services, Data Configuration, and Software:
All separately housed software, external services, external configurations, or other data of parity is the intellectual property (“intellectual property” within the External Services, Data Configuration, and Software clause) of Us. This includes, but is not limited to data configurations set up in Cloudflare.com; Wordfence configurations sourced from Our Wordfence templates; separately housed software we write or have previously written, and employ to enable desired, required, or best-practice functionality as determined by Us or requested by You (Examples include but are not limited to: programs; scripts; programming files; files contacted by webhooks; files triggered by software events; source code; programming language classes, structures, comments, or abstracts, etc.); licensed software (Examples include but are not limited to: Yoast SEO licenses, Wordfence licenses, GOTMLS.net Licenses/Donations/Subscriptions which provide beyond-free functionality, Revolution Slider licenses, Page Builder licenses, theme licenses, Gravity Forms licenses, etc.).
Separately housed software is defined as any software, programming files, or scripts stored outside of the primary parent folder which contains information for the primary Service provided by Us. An example includes but is not limited to: We are contracted to build a website for You; Your website is stored at “/httpdocs/”; We write or use previously written files or programs to provide functionality to Your website that is not housed inside of “/httpdocs/” or any of its child folders; all files housed outside of “/httpdocs/” are Our intellectual property. Another example includes but is not limited to: We are contracted to set up or maintain a CRM installation for you; based on Your requirements or preferences, or Our determination for best-practice, ease-of-maintenance, practicability, reasonability, or other discretion, We create a script or program to provide functionality housed not within Your CRM installation; this script or program created or employed outside of Your CRM installation is Our intellectual property.
Webhooks (also called web callbacks, reverse APIs, or HTTP push APIs) are generally defined as a way for an app to provide other applications with (typically) real-time information. A webhook delivers data to other applications (typically) as it happens, meaning you get data immediately.
Licenses to Our intellectual property may not always be provided for free. We reserve the right at any time to, without warning but with consent, charge fees for limited use licenses. Refusal to consent to Our fees for limited use licenses may result in the disabling of functionality or inability to access information provided by those licenses.
Copies of Our intellectual property may not be made without Our prior written consent. Any copies (legal or illegal) of Our intellectual property may contain self-destruct mechanisms, alerting mechanisms, or other protections. These protections may yield the partial or full deletion of Our copied intellectual property as well as any information Our intellectual property is connected to (such as a file Our intellectual property is stored within). These protections may also alert Us to the use of Our intellectual property and certain internal information for tracing reasons, proof-of-use reasons, or evidential reasons. You agree to the presence and use of these self-destructing, alerting, and other protection mechanisms employed within Our intellectual property.
We agree to provide you with a limited, revocable, non-redistributable license to reasonably use Our external services, data configurations, or software while you have an active contract with Us for the primary Service the external service, data configuration, or software was created or provided for. The licenses We provide to You may be invalidated, revoked, retracted, or unavailable to You at any time, without warning. You agree to fully indemnify, hold harmless, and defend Us and Our directors, officers, employees, agents, stockholders, and Affiliates from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs, and expenses (including but not limited to reasonable attorney’s fees and costs) relating to lost services, lost information, or other functionality or information not available when any or all licenses or intellectual property are destroyed, invalidated, revoked, retracted, or unavailable to You.
- You agree to indemnify and forever hold Us harmless from and against any and all demands, claims, causes of action, fines, penalties, damages (including consequential), liabilities, judgments, and expenses (including but not limited to reasonable attorneys’ fees and investigation costs) arising out or contributed to by Your negligence, error, forgetfulness, willful misconduct, or deliberate act, or the negligence, willful misconduct, bodily harm injury or deliberate act of Your employees, agents, representatives, customers, invitees and/or any Client-Appointed Contractors (CAC), and all other liabilities, at the event to which this Contract relates, including but not limited to Your violation of Federal, State, County or Local ordinance and/or Your violation of this Contract as set agreed to.
- TotalWeb hereby agrees to perform the contracted Services to meet industry best practices and quality standards to the best of Our knowledge at the time of execution. Should TotalWeb publish incorrect information, the information will be corrected by TotalWeb at no charge to the Client after written notification of the error, but Our liability is strictly limited to correcting the published information, and the Client hereby agrees to indemnify Us and Our Service partners, and hold TotalWeb Partners harmless for any losses claimed to have resulted from incorrect data publishing.
- We shall have no liability or responsibility for content received or distributed by You or Your CACs through the Service, and You shall indemnify, defend, and hold Us and Our directors, officers, employees, agents, subsidiaries, affiliates, successors, and assigns harmless from any and all claims, damages, and expenses whatsoever (including reasonable attorneys’ fees) arising from such content attributable to You or Your CACs.
- If anyone brings a claim, cause of action, or dispute against Us related to Your services, actions, content or information on Our websites or at Our event(s) or Your information distributed through Our Services, You agree to indemnify and hold Us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to any such claim, cause of action, or dispute.
- You shall not accept any claim settlement that (i) imposes an obligation on Us; (ii) requires Us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Us without Our prior written consent. We are not required to give Our consent to any such settlement or request.
- If You reside in the US or your business is located in the US: You and We agree to arbitrate any claim, cause of action, or dispute between You and Us that arises out of, or relates to, any access or use of Our services (“commercial claim”). This provision does not cover any commercial claims relating to violations of Your or Our intellectual property rights, including, but not limited to, violations of Your or Our confidential information or trade secrets, or efforts to interfere with Our Products or engage with Our Products in unauthorized ways (for example, automated ways).
- We and You agree that, by entering into this arbitration provision all parties are waiving their respective rights to a trial by jury or to participate in a class or representative action. THE PARTIES AGREE THAT EACH MAY BRING COMMERCIAL CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. You may bring a commercial claim only on your own behalf and cannot seek relief that would affect other parties. If there is a final judicial determination that any particular commercial claim (or a request for particular relief) cannot be arbitrated in accordance with this paragraph’s limitations, then only that commercial claim (or only that request for relief) may be brought in court. All other commercial claims (or requests for relief) remain subject to this paragraph.
- The Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. All issues are for an arbitrator to decide, except that only a court may decide issues relating to the scope or enforceability of this arbitration provision or the interpretation of the prohibition of class and representative actions.If any party intends to seek arbitration of a dispute, that party must provide the other party with notice in writing. This notice of dispute to Us must be sent to the following address: Strategic Market Solutions LLC, 2113 W Vienna Rd, Clio, MI 48420
- The arbitration will be governed by the AAA’s Commercial Arbitration Rules (“AAA Rules”), as modified by these Commercial Terms, and will be administered by the AAA. If the AAA is unavailable, the parties will agree to another arbitration provider or the court will appoint a substitute. The arbitrator will not be bound by rulings in other arbitrations in which You are not a party. To the fullest extent permitted by applicable law, any evidentiary submissions made in arbitration will be maintained as confidential in the absence of good cause for its disclosure. The arbitrator’s award will be maintained as confidential only to the extent necessary to protect either party’s trade secrets or proprietary business information or to comply with a legal requirement mandating confidentiality. You will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA Rules. You will also pay for Our administrative and arbitrator fees if your commercial claim for damages is frivolous (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
- If any provision of this dispute resolution provision is found unenforceable, that provision will be severed and the balance of the dispute resolution provision will remain in full force and effect.
- All commercial claims between us, whether subject to arbitration or not, will be governed by Michigan law, excluding Michigan’s conflict of laws rules, except to the extent that Michigan law is contrary to or preempted by federal law.
- If a commercial claim between You and Us is not subject to arbitration, You Agree that the claim must be resolved exclusively in the jurisdiction governed by the “Contractual Jurisdiction” clause within this agreement.
- You agree to pay for all fees incurred from litigation or arbitration if the claim is found in Our favor, including, but not limited to, court fees, legal fees, arbitrator fees, etc. You agree to this regardless of the setting: litigation, arbitration, or mediation (including self-mediation).
- This Arbitration Provision shall be broadly interpreted. “Dispute” means any claim or controversy related to Us or Our relationship, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before this or any prior Agreement; (3) claims that arise after the expiration or termination of this Agreement
- You, the Client, agree to all the terms of the Dispute Resolution clause.
Limitation on Liability & Maximum Recovery:
In no event will We, or Our officers, managers, members, employees, agents, successors, subsidiaries, distributors, affiliates or third parties providing information on this site or via other channels, including but not limited to phone and email, be liable to any user of the Site or any other person or entity for any direct, indirect, special, incidental, punitive, consequential or exemplary damages (including, but not limited to, damages for loss of profits, loss of data or loss of use) arising out of the use or inability to use the Site or any information contained therein, including user content, whether based upon warranty, contract, tort, or otherwise, even if we have been advised of or should have known of the possibility of such damages or losses.
You hereby acknowledge that the preceding limitation on liability will apply to all content, merchandise and services available through the Site or other channels. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, in such jurisdictions liability is limited to the fullest extent permitted by law. Regardless of the previous paragraphs, if We are found to be liable, our liability to you or to any third party is limited to the greater of (a) the amount in dispute not to exceed the total amount which you paid to us in the twelve (12) months prior to the action giving rise to the liability or (b) USD $100.
Information Censorship & Data Removal:
You hereby give Us full right to censor or remove any and all information posted on, or in queue to be posted on, or requested to be posted on the contracted digital properties for any reason, at Our sole discretion. You agree the censorship and/or removal does not constitute a force majeure invocation, nor a refund or any kind, in any manner or form whatsoever.
You agree We are not required to provide notice of any kind, at any time, due to censorship and/or removal of information from the contracted digital properties. You agree to hold Us harmless and indemnify Us from any and all claims of damages and/or losses of any nature purportedly caused, directly or indirectly, by Our censorship and/or data removal actions.
Forum Selection Clause and Contractual Jurisdiction:
This Contract is governed by the laws of Michigan, the state of incorporation for Strategic Market Solutions, LLC. Any claim by either party is to be in accordance with Michigan law, having all non-arbitrable claims filed in a Genesee County Michigan court (Michigan’s 67th District courts). If Michigan’s District courts are not within competent jurisdiction, the arbitration shall be conducted by, and filed in, a Michigan State court in Flint Michigan (Michigan’s 7th Circuit courts). You consent to exclusive jurisdiction and venue of such courts.
Force Majeure Clause:
Our performance under this Agreement is subject to acts of God (such as, but not limited to, fires; explosions; earthquakes; drought; tidal waves, and floods; wide-spread disease), war, government regulation, terrorism, disaster, civil disorder (such as, but not limited to, riot, commotion, strikes), curtailment of transportation facilities, electrical outages, data-transfer curtailment or any other aggressively constricting situation beyond Our control, making performance inadvisable, commercially impracticable, illegal, or impossible under this Agreement. We may also invoke force majeure when the Client implicitly or explicitly refuses communication resulting in Our underperformance or failure to meet minimum guarantees specified in the Agreement. We may cancel this Agreement for any one or more of such reasons upon written notice to the Client. We may instead postpone the required date(s) to render Our Services and the Agreement at Our discretion. We reserve the right to invoke the force majeure clause at any time and will provide written notice to You, the Client.
Our invocation of the Force Majeure Clause will be only after We have made good-faith efforts or commercially reasonable efforts to execute the Agreement.
The Client waives any right to retract any and all pending or settled payment(s) and monies to Us. All monies, deposits, and retainers held by Us for the good-faith execution of Services not-yet rendered by Us maximum refund of 25% of the value of the deposit, retainer, or monies held for good-faith execution of Our Services, at Our sole discretion; this refund may only be awarded through arbitration or Our written consent. Upon such a refund, We are only responsible to render Our Services for 75% of the current Agreement. The client has no right to a refund in the event of a force majeure invocation, only the right to request a refund from Us via written request. Refunds will not be considered without a written request from the Client.
In the event We authorize a refund due to a force majeure, the Contract may be reinstated pending the approval of both Strategic Market Solutions, LLC. and the Client; provisional changes to the Agreement may be made at the time of reinstatement, including but not limited to deadlines for Services rendered.