FR8 Media Terms of Service
Last updated on January 26, 2021.
FR8 Media (“FR8 Media,” “we,” or “us”) provides a range of marketing products and services for businesses of all sizes (the “Services”). Your Service Agreement (the “Service Agreement”), Service Order (the “Service Order”), or Online Order Form (the “Order Form”) sets forth which Services you are purchasing, the party entering the agreement (the “Client,” “you” or “your” and together with FR8 Media the “Parties” or each individually a “Party”), the costs for such Services, the minimum Initial Term, and other relevant details. As used in this Agreement, the term Service Agreement means any Service Agreement, Service Orders or Online Order Form or any combination of the foregoing. These Terms of Services (the “Terms of Service” or the “Terms”) are incorporated by reference into and made part of any Service Agreement submitted to FR8 Media and govern the relationship between you and FR8 Media. These Terms of Service are effective on the date the Service Agreement is signed (the “Effective Date”) and remain in effect until terminated as provided below. The Service Agreement, the Terms of Service, and the other documents incorporated by reference herein are collectively referred to as the “Agreement.” These Terms of Service may be reviewed at any time at fr8.media/terms.
FR8 MEDIA PROVIDES THE SERVICES AND SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPTS AND COMPLY WITH THEM. BY EITHER SIGNING A SERVICE AGREEMENT/SERViCE ORDER OR BY CHECKING THE “ACCEPT” BOX ON THE SIGNUP ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE TO BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS. IF YOU DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES OR SOFTWARE.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THESE TERMS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, FR8 MEDIA DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY FR8 MEDIA, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.
1. About the Services and these Terms of Service. FR8 Media provides a variety of DIY (“Do It Yourself”) and DIFM (“Do It For Me”) marketing, business management, and payment processing technology products and services to businesses of all sizes. All DIFM plans included a dedicated individual or team to help with your account success. To qualify as a DIFM plan, your Service Agreement must have services in addition to the FR8 Media Base Fee, and you must have a minimum monthly payment of $1995 or higher. DIY plans include access to one of the FR8 Media Platforms. Dedicated individual or team Services are not available with a DIY plan but may be added at any time for an additional price. Your Service Agreement or Service Order will outline the products and/or services applicable to your account, the Term of our business relationship, and the price for each of the products and/or services. These Terms of Service define the legal terms and conditions that govern our products and services and your Service Agreement. You may add additional one-time or recurring products and services at any time during the life of this Agreement by either verbally communicating the request to your Marketing Executive/FR8 Media representative or communicating your request via email. Unless the Parties agree otherwise in writing, all products and services added during the Term shall be governed by this Agreement.
2. Definitions. The FR8 Media products, services, and other capitalized terms have the definitions as defined in this section or in the section where they first appear
a. Ads/Ad Credits. Ad Credits are used to run advertisements across digital platforms using the Fr8 Ads, Retargeting Ads®, and Social Targeting Ads™ programs under the Model A Advertising Plan. Ad Credits cost one dollar ($1.00) per credit. Ad Credits are allocated to media buy (paid placement), campaign management, and campaign optimization. A more detailed explanation of Ad Credits, how they are allocated, and the current media buy allocation percentage can be found at www.fr8.media/how-ad-credits-work. Please note, the media buy allocation percentage is subject to change without notice. Ad Credit costs, including cost-per-click reporting and more, are reflected through the Fr8 Ads, Retargeting Ads®, and Social Targeting Ads™ programs within the FR8 Media platform for return on investment (ROI) and cost-per-conversion tracking/analysis. Ad Credits are subject to the terms and conditions of the applicable 3rd Party provider (e.g., Google, Bing, YouTube, Facebook), and some services may not be available for some client products or services. You may access a performance report which includes raw data on costs, clicks, and impressions at the Google advertising account level at any time by clicking the applicable link on your FR8 Media dashboard. These links are available in the top right-hand corner of the Fr8 Ads, pages on your FR8 Media dashboard. Ad Credits are non-refundable, but may be allocated to other services with a written request (email acceptable). If you cancel your recurring Ad Credit product, your credits on file will remain in your account for one billing cycle, and must be used or transferred to another product during your next monthly billing cycle or may be forfeited. If we are developing a website for you, your Ad Credits and related services cannot be used until your site has gone live with your approval. Actual ad position on 3rd Party websites is based on several factors, and top position cannot be guaranteed. Unless instructed otherwise, your Marketing Executive will optimize your Fr8 Ads campaign to target the top three ad positions for your keywords where possible. In any billing cycle, FR8 Media may spend any credits you have on file. FR8 Media will monitor your Ad Credit spend to keep you on budget, but in rare cases, FR8 Media may spend over and above the number of credits you have on file. Any balance of your Ad Credit budget remaining at the end of a monthly billing cycle, positive or negative, will be rolled over to the next monthly billing cycle. Any negative balance remaining at the end of the Term is due at that time. We use a master advertising account with each 3rd Party Ad Credit services provider (Google, Bing, Yahoo, Facebook, etc.). We will set up an advertising account for you within our master advertising account. You acknowledge that you must use our master advertising account in order to use Ad Credits for these services. Because all of our accounts are linked within our master advertising accounts, we will not provide access to view or control your advertising or analytics accounts at the advertising account level of the respective service provider. You acknowledge that we will not transfer any advertising accounts or related account access to you at the end of the term. You can get a report of your advertising performance and Ad Credit usage by logging into the FR8 Media platform at any time or by contacting your Marketing Executive, if applicable.
b. Complimentary Promotions. FR8 Media occasionally offers Complimentary Promotions to new Clients signing a Service Agreement. Complimentary Promotions take the form of funds, credits, or creative hours added to the Client’s account to offset marketing costs under the Service Agreement. Unless otherwise stated, Complimentary Promotions may be used to offset any cost associated with the Service Agreement with the exception of 3rd Party advertising media buy. Complimentary Promotions are fully contingent on Client fulfilling the Initial Term. If you cancel the Service Agreement prior to fulfilling the Initial Term, Client must pay back all Complimentary Promotions spent on Client’s account at the time of cancellation, in addition to any applicable Early Cancellation Fees.
c. Creative Deliverables. Creative Deliverables shall be defined as Custom Website Design, logo design, video production, photography services, the end product of any Natural Listing Ads services, and the end product of any creative service defined in Section 1.d.
d. Creative Services/Creative Credits. Our creative services include, but are not limited to, Custom Website Design, logo design, photography services, and general design and development time. All creative services are offered via Creative Credits. Creative Credits cost one dollar ($1.00) per credit. Your Service Agreement and/or FR8 Media Representative will outline your specific creative services package and our estimated Creative Credit bid for the services. The credit bid is provided on the estimation, based on information received from you at the time of offer, that the projected total time spent on the design and development of this project should not exceed the total number of credits listed. In the case of additional credits are required to complete the project, you will be notified before any additional charges, beyond the initial cost estimate, are incurred. In the event of increased costs, we will proceed only after receiving both approval (written or oral) and payment from the Client. Your approval of any credit increase shall be binding and incorporated into this agreement. Any unused Creative Credits paid for by Client will remain in the Client’s account for one year from the date of payment and will then expire. You may also purchase Creative Credits which may be used for any creative services. A list of Creative Credit cost for services can be provided upon request. If you have Creative Hours on file those are the equivalent of 75 Creative Credits. Creative Hours, Complimentary Creative Hours and Creative Credits are non-refundable and expire at the end of the Term. Creative Hours or Creative Credits may not be transferred to other services without our written consent. Creative Services are available at a discounted rate for Marketing Customers. Your FR8 Media representative can provide you with the current rates for Creative Services. Video Production services are more involved and have a different hourly rate. Please see your Service Agreement for our current Video Production hourly rates. For more information on Video Production please see Section ae. Our Creative Services necessarily require your input and cooperation. You agree to provide materials, direction, information, approvals, authorizations or decisions necessary for us to complete your project. We will work with you to complete your Creative Services project on your timeline. However, if we do not hear from you for over one year, we may cancel your project and you will forfeit any amounts paid for the Creative Services.
e. CRM. The FR8 Media CRM is a customer relationship management system within the FR8 Media platform that is designed for small and medium-sized businesses. The CRM is included in both DIY and DIFM plans with the FR8 Media Base Platform Fee payment. You may use the FR8 Media CRM to manage up to 10,000 leads, contacts, or customers, additional contacts require additional resources and fees. You may add as many team members as you need, create up to 20 custom fields at no additional charge, assign tasks, track deals and sales pipelines, assign contacts to specific team members, and use your CRM on your phone or desktop computer from anywhere with internet access. Once you sign up for the FR8 Media CRM, a CRM specialist will contact you to walk you through the product and answer any initial questions you may have. Going forward, either your Marketing Executive or a CRM specialist can assist you with any questions via email or via phone during our normal business hours. Access to the FR8 Media CRM is included through the DIY Plan of the FR8 Media Base Plan. Your access to the FR8 Media CRM may be suspended or terminated if you dispute any payment or fail to make a required payment. We are under no obligation to store and maintain your CRM records if your FR8 Media CRM account has been terminated. If you have signed up for the free FR8 Media CRM trial, you will have full complimentary access to the CRM for the free trial period. After the free trial period, you will need to pay either the DIY Fee or the FR8 Media Base Fee monthly to have access to the CRM. All fees paid for the FR8 Media CRM are non-refundable. You may log into the system and export a .csv file of your CRM data at any time, as long as your CRM access is not currently suspended or terminated. Please contact your CRM specialist for more information about exporting CRM data. You are fully responsible for the information that you upload to the CRM. The CRM is not intended to store sensitive, protected, proprietary, health, or financial data, and you agree not to use the CRM to store this information. You acknowledge that the Fr8 Media CRM is not PCI compliant, and you agree not to store financial data, social security numbers or payment processing data within the CRM. You acknowledge that the FR8 Media CRM is not HIPAA compliant, and is not designed to be used by any health services provider. You agree not to store any HIPAA protected PHI within the CRM. For clarification, your Indemnification obligation outlined in Section 13 applies to any unauthorized use of the CRM. To the extent that we process CRM data that is subject to the European Union General Data Protection Regulation (“GDPR”) on your behalf, the terms of the FR8 Media Data Processing Agreement (the “FR8 Media DPA”) shall apply, see Section 15.j
f. Custom Website Design. Custom Website Design shall mean a website not based on one of our preexisting designs and that is developed pursuant to an hourly bid and scope of work signed by the Client. All Custom Website Sites will display the words Custom Website Design prominently on Client’s Service Agreement. FR8 Media websites are never Custom Website Designs.
g. eCommerce Website Design. This product includes eCommerce website design services built to work on some of the most popular eCommerce website platforms (Freighting Network, FR8, Websites FR8 App, etc.) These services may appear on your service agreement as “FR8 Media,” “FR8 APP,” “FR8 Design,” or “Freighting Network” The GoLive Package is included with your eCommerce Website Design purchase. Website development is a fluid process dependent on several factors, including, but not limited to, Client response time on questions and approvals, Client response time for delivering website content, and requests for additional rounds of revisions. Accordingly, we cannot guarantee your website will “Go Live” on any set timeline. We will, however, strive to minimize response times on our end and bring your website live as soon as practicable. Unless you have contracted for a Custom Website Design, a site will be developed for you based on our standard website design layouts. If you require specialized functionality and/or complex design features, you will need to contract for a Custom Website Design. If you have contracted for Custom Website Design services, it will be clearly stated as “Custom Website Design” on your Service Agreement and will include both a scope of work and an estimated work hour quote. Additional information regarding Custom Website design is included in Section 1.n
h. Email Fr8 Media. Email Fr8 Media allows you to easily design, create, and send targeted marketing campaigns to your email marketing list through the FR8 Media platform. Email Fr8 Media under either the DIY Plan or a DIFM Plan includes 2,500 emails per month at no additional charge. Email messages in excess of 2,500 per month will be charged $.004 per message ($10 per 2500 messages). Any excess charges due will accrue over the month and you will be billed for these charges in arrears with your regular monthly marketing payment. Unused messages do not rollover from month to month. By using Email Fr8 Media you agree to the FR8 Media Anti-Spam Policy located at fr8.media/antispam. The Anti-Spam Policy is incorporated into this Agreement by reference. You represent that you will use Email Fr8 Media in compliance with all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity and defamation, and regulations such as HIPAA and other applicable privacy laws.) You agree not to use Email Fr8 Media in a way that is obscene, harassing, threatening, libelous, or in any way that violates or infringes upon any 3rd Party intellectual property rights. You hereby agree to indemnify and hold harmless FR8 Media against any damages, losses, liabilities, and expenses arising from an alleged violation of the foregoing or otherwise relating to your use of the Email Fr8 Media services.
i. Fees. Your Fees are the amounts you owe pursuant to your Service Agreement. Your Service Agreements will include one-time, monthly and/or annual Fees required for your use of the Services. Fees may also include additional Products and Services are added during the Term at your request.
j. GoLive Package. With the GoLive Package we will fully design your website for you based on your company’s branding and your choice of one of our standard website design templates. Your site design includes up to three rounds of revisions at no additional cost. Along with the site design, FR8 Media will populate up to 20 webpages with Client-provided content or products at no additional charge. We anticipate that you will provide the content for the website pages, but we will provide content writing services for up to 10 pages at up to 300 words per page (rather than the population of 20 pages of the Client supplied content), upon request at no additional charge. If more time is needed beyond the three initial rounds of revisions it can be added at an additional cost. Once your site is built and approved, we bring your site live. Website development is a fluid process dependent on several factors, including, but not limited to, Client response time on questions and approvals, Client response time for delivering website content, and requests for additional rounds of revisions. Accordingly, we cannot guarantee your website will “Go Live” on any set timeline. We will, however, strive to minimize response times on our end and bring your website live as soon as practicable.
k. Launch Package. This package includes an initial 1-hour kickoff call to plan the process. Your platform advisor and/or project manager will then get all of your DIY services off the ground. For your Websites FR8 website, you will be responsible for choosing a template from https://websitesFR8.com/templates. Your Launch Package project manager will then design a homepage and theme on your selected template to match your branding, create a navigation structure for your website and give you a 1-page walkthrough on how to edit your website. For your CRM setup, we will create one contact form to be used on your website. For your email setup, we will create one website branded email template for you as a starting point. Once these initial setups are complete, your project manager will join you for a one-hour coaching call to review your new website and the Fr8 Media Services, give you tutorials on the email marketing and CRM platforms, and schedule the launch of your website.
l. Listings/Local Listing Ads™. The “Listings” or “Local Listing Ads” program is used to add, update, sync, enhance, and monitor your local business listings across dozens of local sites through your FR8 Media interface. The Listings program is available for Marketing Clients with physical business locations. Included with the FR8 Media Base Platform payment is Listings account for one location. Additional Listings locations are available at $35 per month per location.
m. FR8 MEDIA Payments Program Discount. If you entered this Agreement in conjunction with a Fr8 Media Payment Processing Agreement, the Company may have agreed to discount your monthly marketing payment to offset the $25 FR8 MEDIA Payments Program Fee. If applicable, this discount will be reflected in your Service Agreement. This discount will appear on your monthly marketing invoice as long as you remain both a Marketing Client and a Payment Processing Client. If you terminate either service, the discount will no longer be applied. For clarification, the discount is not available to Clients who are not being charged the monthly FR8 MEDIA Payments Program Fee in conjunction with their payment processing agreement
n. FR8 Media Base Plan. The FR8 Media Base Plan (the “FR8 Media Base Plan” or “Fr8Marketing”) is either a DIY or DIFM (depending on to inclusion of additional services) plan that grants you access to the FR8 Media software platform as well as access to utilize certain FR8 Media Services. Your Service Agreement will outline your specific monthly FR8 Media Base Platform fee. The FR8 Media services included with the FR8 Media Base Fee are a limited license to use the FR8 Media software platform during the term, either a Websites FR8 website license (if requested), Email Fr8 Media, on-demand marketing and design services, the conversion inbox, the FR8 Media CRM, a Freighting Network Account, store up to 10GB of files in the cloud, website hosting for up to one website, the Local Listing Ads™ Program for up to one local business location, and a customer support pin number. Each of these products/services are available for all FR8 Media accounts that are current on their monthly FR8 Media Base Plan Fee, however, some products/services may not be utilized for your account depending on your specific marketing goals. Please note, some services may require additional funds or credits to run or be utilized. You may only use your credits on file if you are current on your monthly FR8 Media Base Platform Fee. Some services that by their nature require a live website in order to be utilized will not be utilized until your website goes live. Please note, some 3rd Party products and services may not be available for all clients based on the terms and conditions of the applicable 3rd Party provider. If you have a DIFM plan, your Marketing Executive will work with you to develop a FR8 Media plan designed to address your marketing goals based on your specific needs considering your location, budget, and other factors. If we are developing a website for you, your FR8 Media platform login may not be provided until your site is completed and goes live with your approval.
o. FR8 Media Payments. FR8 Media Payments and related services are governed by the FR8 Media Payment Terms located at www.fr8.media/payment-terms (the “Payment Terms”). The Payment Terms are incorporated in full by this reference. If you use FR8 Media Payments services you hereby agree to be governed by the Payment Terms.
p. FR8 Media Platforms. The FR8 Media Platforms include all of FR8 Media’s software platforms and products offerings. These include, but are not limited to, FR8 Media, FR8 Media Payments, Websites FR8, and Freighting Network.
q. Marketing Client. For the purposes of this Agreement, a Marketing Client shall mean any active Client that is current on its FR8 Media Base Plan Fee.
r. Model A Advertising Plan. Under the Model A Plan, Client will purchase Ad Credits, and ads will be run through our master advertising accounts using those Ad Credits. This is the default advertising plan for all Clients. If your Service Agreement doesn’t specify which advertising model you are using, you are under Model A.
s. Model B Advertising Plan. Under the Model B Plan, you will not be purchasing Ad Credits, but will instead pay a monthly optimization fee. Client will be responsible for purchasing ads directly from the applicable 3rd party ad provider in Client’s own advertising accounts. Client agrees to provide the Company with admin access to these accounts during the Term. The monthly Optimization Fee (the “Optimization Fee”) is equal to $3,000 plus 10% of Client’s monthly 3rd Party Media Buy total. The Company will manage all of Client’s ad campaigns for this set monthly Optimization Fee. Your Marketing Executive will work with you to determine your anticipated monthly spend prior to your monthly bill each month and adjust your monthly invoice accordingly, in advance. If your actual spend exceeds your anticipated spend by more than 10% your next monthly invoice may be adjusted accordingly to accommodate the overspend.
t. Call Tracking. If you choose to utilize the Call Tracking service, calls will be recorded for tracking purposes so that we may analyze the performance of ads and optimize accordingly. Call recording can be deactivated if needed while leaving call tracking in place by request. Two inbound call tracking phone numbers are included with the FR8 Media Base Platform payment; additional numbers may be purchased for an additional cost per month. After cancellation of your account, you may maintain your Call tracking number(s) for a monthly fee. 500 call tracking minutes per month are included with your FR8 Media Account. Additional tracking minutes are available for $.02 per additional minute.
u. Content/Natural Listing Ads. “Content” a/k/a “Natural Listing Ads” Services are used to provide written, graphic design video and other content for your website or social media profiles for DIFM accounts with a monthly or one-time Content credit budget. Content Credits Credits are used to power the this program. Content credits cost one dollar ($1.00) per credit. Content credits can be used to execute such things as SEO keyword research, website optimization, title tag and meta description optimization, link quality auditing, disavowing bad links, internal linking optimization, blog architecture optimization, image tag optimization, social media network optimization, Google My Business and Google maps listing optimization, page schema markup, page content creation and optimization, blog post writing and optimization, SEO optimized infographic design, guest blog posting for link building, video production and more. All Content credit usage is determined by FR8 Media based on what we estimate will have the greatest impact on organic growth. Depending on your marketing goals Content services may begin as soon as you are entered into our system, however, in some cases, it might not make sense to use Content credits until your website has gone live with your approval. Your Marketing Executive and/or Content team members will determine the best allocation of your resources depending on your goals. Content credits are non-refundable, but may be allocated to other services, with the exception of Ad Credits, with a written request (email acceptable). If you cancel your recurring Content credit product, your Content credits on file will remain in your account for one billing cycle, and must be used or transferred to another product during your next monthly billing cycle or may be forfeited. Unless otherwise specified, content will be automatically posted to your website periodically. You are solely responsible for the review and approval of all website content and must notify FR8 Media of any errors. Upon receiving notice of an error, FR8 Media’s sole responsibility shall be to remove the erroneous content as soon as is practicable. All content will be considered approved unless Client provides notice to FR8 Media. Client represents that it will not choose keywords that violate any 3rd Party’s trademarks or other intellectual property rights or will obtain licenses to use any 3rd Party trademarks as keywords. You may log into the FR8 Media platform at any time to track Content credit usage and results. Additional Content credits may be added at any time in order for additional activities to be completed.
w. Oracle/Facebook 3rd Party Audience Data. If you choose to use the Oracle 3rd Party Audience Data we will provide access to the Oracle Data Cloud Digital Audiences for use in your Facebook ad campaigns. The cost of the services is fifteen percent (15%) of the total gross amount (prior to any discounts, rebates, or any other offsets) that you spend on media that includes the Oracle Powered Facebook Custom Audiences in any Facebook Ad Sets (your “Gross Media Spend”). An amount equal to 15% of your estimated Gross Media Spend will be taken from your Ad Credits on file prior to your Facebook ad sets running. Any excess charges not accounted for in this estimate will accrue over the month, and you will be billed for these charges in arrears with your regular monthly marketing payment. Your use of these services in connection with Facebook ads is subject to separate terms and conditions, including Facebook’s Advertising Guidelines (currently accessible at https://www.facebook.com/policies/ads, as updated by Facebook from time to time). You represent and warrant that (i) your content complies with all applicable foreign and domestic federal, state and local laws and government rules and regulations (including any laws, directives or regulations relating to privacy, consumer protection, databases, data collection or data transfer) and your privacy policies, (ii) you have provided proper notice and secured proper consent for the collection and use of your content in connection with this Agreement, and (iii) you have procured all rights and licenses, and have all power and authority, necessary to provide your content to the Company without the additional consent of any third party. You further represent and warrant that any of your content provided to the Company for utilization in connection with the Facebook Platform Services (i) consists solely of Personal Data based records (and not cookie-based records or cookie-based records that are appended to Personal Data that were either (x) collected from your customers or (y) purchased or licensed by you from third parties and (ii) is readily available and accessible to you. You expressly agree that Facebook is an intended third-party beneficiary of this Agreement with respect to the provisions set forth in this Section. To use these services, we must provide Oracle with access and permissions to your Facebook Business Manager and/or Ad Accounts to which Oracle has fulfilled Oracle Powered Facebook Custom Audiences to allow Oracle to access, via Facebook reporting APIs, audience usage reporting on an ongoing basis for the use of Oracle Powered Facebook Custom Audiences. You acknowledge and expressly consent to MWorld, Corp. sharing this information and these permissions with Oracle. EU GDPR Obligations: Your content may not relate to individuals subject to the General Data Protection Regulation (GDPR) 2016/679.
x. Print and Merchandise Services. Print and Merchandise Services are provided through partnerships with third party providers. All print services will be available for pickup at a to be determined location or will be shipped to Client at an address provided by Client. Your price and included Print Services will be included on your Service Agreement or otherwise communicated to you by your Marketing Executive. The timing and location of the delivery depends on the availability of the respective service.
y. Promotional Point of Sale/Payment Processing Equipment. If you have been provided promotional payment processing equipment at no cost when you signed up for our marketing and/or payment processing services, that equipment is provided free of charge (shipping not included) to you for the term of your processing agreement. In the event you terminate your processing product(s) early and/or marketing service agreement prior to completing the Initial Term, you agree to return the promotional equipment, or remit to MWorld, Corp., the retail price of the promotional equipment within 5 business days of account termination.
z. Reputation Management. Your online reputation is vitally important in online marketing. With Reputation Management services, we will provide a dedicated Reputation Manager to help you manage your business’ online reputation. Your Reputation Manager will work with you to help improve your online reputation by reaching out to verified clients to solicit reviews on reputable review websites. Your reputation manager will also read and reply (with your permission) to reviews of your business posted throughout the internet. The FR8 Media Reputation Management program is designed to be used together with the Freighting Network program. All Reputation Management accounts will include a Freighting Network account. Your Reputation Manager will also challenge verification on questionable reviews left on Freighting Network and request customer feedback for reviews left on Freighting Network below three stars.
aa. Services. For the purpose of this Agreement, Services means any and all Products and Services offered by us pursuant to these Terms of Service
ab.Setup Fee. For all FR8 Media accounts with the exception of Trial Accounts. The amount of your Setup Fee is defined in your Service Agreement. If your Service Agreement does not define the Set Up Fee it shall be equal to $3,350.00. FR8 Media agrees to waive this Setup Fee for all accounts that sign up for an Initial Term of six (6) months or more. If you fail to complete your Initial Term you acknowledge that you must repay any waived Setup Fee. See Section 6.c. for more information about early cancellation of your Service Agreement.
ac. SMS Fr8 Media. Use our SMS Fr8 Media platform to manage your text message marketing to engage new and existing clients and increase sales. The SMS platform can be used to create trackable, custom, automated SMS campaigns. Your FR8 Media Base Platform payment allows you to send 250 messages per month to your subscribers at no additional cost. Messages in excess of 250 per month will be charged $.04 per message. Any excess charges due will accrue over the month, and you will be billed for these charges in arrears with your regular monthly marketing payment. Unused messages do not rollover from month to month. By using SMS Fr8 Media you agree to the FR8 Media Anti-Spam Policy located at fr8.media/antispam. The Anti-Spam Policy is incorporated into this Agreement by reference. You are solely responsible for complying with all associated laws and regulations in conjunction with your SMS Fr8 Media account including, but not limited to, CAN-SPAMM and the TCPA. Further, you are solely responsible for validating and keeping accurate records of your SMS number list, and confirming that all recipients have consented to receive SMS alerts from your business. You are solely responsible for the content of all SMS messages sent, and agree to indemnify FR8 Media in all matters related to SMS Fr8 Media.
ad. Social Media Posts and Social Media Management Services. If you are a FR8 Media Base DIY Client, you may use the FR8 Media Software to publish posts across your social media platforms. You may connect up to 10 social media profiles within FR8 Media (additional profiles are an additional $1 per month). You may publish 500 posts per month at no additional charge. Posts in excess of 500 each month will incur an additional fee of $.02 per post. If you have Social Media Management Services added to your DIFM account, we will provide a dedicated Social Media Manager to help you manage your business’ social presence across your social media platforms. Your Social Media Manager will work with you to help engage and interact with your followers, optimize your profiles, and work to create more visibility and loyalty to your brand. Included in each plan are regular postings on applicable social media platforms, branding and design, regular monitoring and communication on platforms to engage with followers, and response (with your permission) to comments, messages, posts and spam. Your Service Agreement will outline your specific plan (Basic, Standard or Advanced) including the monthly recurring price. The Basic or Maintenance Plan includes 4 posts per month on a maximum of two social media platforms, and up to 1 hour per month of engagement on your profiles. The Standard Plan includes 8 posts per month across a maximum of 3 social media platforms, up to 2 hours of engagement per month, and up to one video per month. The Advanced Plan includes 16 posts per month on a maximum of 4 platforms, up to 4 hours of engagement per month, and up to 2 videos per month. Additional services may be added as follows: +1 Platform per month – $150/mo, +1 Post per month – $75/mo, and +1 hour of engagement per month – $75/mo. Additional Ad Credits may be added on demand for an additional monthly or one-time fee. All Social Media related services are governed by the terms of service of the platform in question (Instagram, Facebook, Twitter, LinkedIn, etc).
ae. Freighting Network. A Freighting Network Account is included in your DIY package with your FR8 Media Base Platform Fee. You may upgrade to Freighting Network Reputation Management services account with a dedicated Freighting Network Reputation Manager at any time for an additional fee. Use the Freighting Network program to monitor your online reviews and reputation. The Freighting Network program includes your listing/profile, rating system, access to the rating and analytics dashboard, recommendations for improving your rating score, the ability to leave notes or reply’s to reviews on certain review platforms, the ability to embed Top Rated Local reviews and ratings on your website, and the ability to use the Top Rated Local trust badge on your website and marketing materials.
af. Trial Services. FR8 Media may offer an obligation free trial to allow you to evaluate some or all of our Services free of charge. With the exception of the terms specifically related to billing, all of these Terms will apply to free trial accounts (each a “Trial Account”). Your free trial includes reduced access to the FR8 Media Platform. Your Trial Account includes unlimited use of certain services within the FR8 Media platform including Payments (the FR8 Media Payment Terms and applicable processing fees apply), CRM (up to 2,500 contacts), Forms, the Banner Builder, and Reputation Management. You also get access to a 14 day trial of Websites FR8 website design by signing up for a Trial Account. The Services included in your Trial Account are subject to change without notice to you, and we may modify or stop offering free trials at any time.
ag. Video Production. Your Service Agreement will contain a project bid which is an estimation of the production time required for your project based on the information you have provided. This would include, but not limited to; the time used by the project manager, designers, and video producer for the purpose of planning, designing, and production as herewith covered in this agreement. Unless specifically stated, video production does not include filming or media capture. In the event that additional video production and design time is required, either due in part on additional client requests, increased scope of the project, or design changes the client will be charged an additional rate. The additional hourly charges, if any, will apply to the client’s project in excess of the estimated design and video production time listed. In the case of time over-runs, the client will be notified before any additional charges, beyond the initial cost estimate, are incurred. We will proceed only after receiving approval (written or oral) from the Client. This Client approval shall be binding and incorporated into the terms of this agreement. Once completed, all media will be delivered through email. If you have a marketing services contract, the media may also be incorporated into the Client’s website or in an advertisement. Delivery of the finished media will only occur if the client has paid in full under the terms of this agreement. We do not store or provide raw video footage after delivery of the completed projected. All raw video footage will be deleted 30 days after the delivery of the finalized media. If you want us to deliver the raw video footage it is available for an additional cost. You will also need to provide the removable storage drive for transport. Video Production services necessarily require your input and cooperation. You agree to provide materials, direction, information, approvals, authorizations, or decisions necessary for us to complete your project. We will work with you to complete your video project on your timeline. However, if we do not hear from you for over one year, we may cancel your project and you will forfeit any amounts paid for the Video Production services.
ah. Websites FR8 Shop App. The Websites FR8 Shop App add-on is a fully functional shopping cart add-on for use on your Websites FR8 website. You can easily add additional products via the Websites FR8 Shop App interface. The Shop App may be added on to your Websites FR8 website for an additional monthly or annual fee. With the Shop App, you are solely responsible for maintaining the confidentiality of all associated access credentials and you are solely responsible for any and all activities that occur using your access credentials. You agree to promptly notify us of any unauthorized use of your access credentials or any other breach of security of your Shop App. You may not use Websites FR8 Shop App (a) in violation of any applicable export laws and regulations, including without limitation any U.S. export laws and regulations; (b) in violation of any applicable national, state, or local laws or regulations, including without limitation any laws governing the import of the Service or governing the content which you make available via the Service; or (c) in ways that infringe the rights of others or interfere with other users of Supplier’s network or other networks. You acknowledge that use of, or connection to, the Internet provides the opportunity for unauthorized 3rd parties to circumvent such precautions and illegally gain access to your Websites FR8 Shop App Data. Accordingly, we cannot and do not guarantee the privacy, security, integrity, or authenticity of any information so transmitted over or stored in any system connected to the Internet or represent that any such security precautions will be adequate or sufficient. Without limitation, you expressly acknowledge that the indemnification provision of Section 14 applies to the use of the Websites FR8 Shop App.
ai. Websites FR8. This DIY hosted website solution grants you a license to the Websites FR8 platform which allows you to create and publish Websites FR8 websites hosted by FR8 Media. You can edit and modify any of our templates to fit your business. This service is available for $300 per year, and we require annual billing for this service. You will have a one-hour kickoff call for basic website training and coaching. This is a directed call based on your questions. You will also receive access to the Websites FR8 knowledge base for helpful articles and FAQs. For ongoing support, you will need to upgrade to the DIY Plan. Websites FR8 websites are a proprietary hosted solution compatible only with FR8 Media servers and must be hosted by FR8 Media. Your license to use your Websites FR8 website is defined in Section 7.d. below. Websites FR8 websites may not be migrated to another hosting platform under any circumstance.
aj. Website Hosting. Website hosting for up to one site is included with the FR8 Media Platform for Marketing Clients upon request. Hosting for additional websites or for non-Marketing Clients is available for $300 per year billed annually on a recurring basis. Website hosting for FR8 websites for additional websites or for Non-Marketing Clients is $49/month or $588/year. Website Hosting includes up to 100GB of bandwidth per month. Additional bandwidth is available for an additional cost, contact your FR8 Media representative for current pricing. Hosting includes up to 3GB of data storage; additional storage will require an additional fee of $5 per additional 3GB of storage per month. These overages will be invoiced monthly and will be calculated at the time of invoicing. Websites FR8 is a proprietary hosted solution compatible only with FR8 Media servers and must be hosted by FR8 Media. Websites FR8 designs may be migrated to another hosting platform. Upon cancellation of your FR8 Media Base Platform or Websites FR8 website hosting may be purchased for $300 per year. If your hosting services continue after the cancellation of marketing, such hosting services will continue to be governed by these FR8 Media Terms of Service. 3rd Party e-commerce site design files must be hosted on their respective servers. Upon cancellation of marketing sites will continue to be hosted on these platforms. If you have issues with your 3rd party website hosting, you must contact those entities directly.
3. Compliance with Laws/Prohibited Content. Client shall not use or permit the Services to be used in violation of any applicable national, state, or local laws or regulations. Without limiting the foregoing, Client may not use any FR8 Media’s Services for any illegal activity including the storage or transmission of information, data, files, or links to content that violate any applicable local, state, national, or international law. This includes, but is not limited to, pirated software, copyrighted data or links thereto, the propagation of computer worms or viruses, the use of false identities, or attempts to gain unauthorized entry to any network. Pornography and sex-related merchandising are prohibited on all FR8 Media servers. This includes sites that may infer or link to sexual content. Spamming sites and sites selling or promoting bulk email software, services, or addresses are also prohibited. FR8 Media may terminate this agreement if it determines, in its sole discretion, Client has violated this policy.
4. Client Obligations. In addition to making all required payments, Client shall (a) cooperate with FR8 Media in all matters relating to the Services and provide access to Client’s advertising accounts including Client’s Google Adwords and Analytics accounts as necessary; (b) respond promptly to questionnaires and any reasonable request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for FR8 Media to perform Services in accordance with the requirements of this Agreement; and (c) provide such customer materials or information as FR8 Media may reasonably request 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. FR8 Media is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement.
5. Payment. Once you have executed your Service Agreement, you will be responsible for payment in full of all associated Fees. All Fees are due in US dollars. Unless otherwise stated, Client will pay all Fees due under this Agreement monthly, in advance. Fees for one-time services will be due in full on the Effective Date, or as otherwise provided by your Service Agreement. For recurring Fees, the initial payment will be taken on the Effective Date, and you will be billed for subsequent Fees as outlined in your Service Agreement. For monthly recurring Services, unless the Service Agreement states otherwise, you will be billed on the same numerical day of each month as the Effective Date. For example, if the Effective Date is November 17th, you will be billed for recurring monthly payments on December 17th, January 17th, and so on. The last billing date each month is the 25th. If your Effective Date is after the 25th, the first payment will be taken on the Effective Date, and recurring payments will bill on the 25th of each month. For annual recurring services, you will be billed for the first year on the Effective Date, and you will be billed for subsequent payments on the anniversary of the Effective Date unless canceled as provided in Section 5 below. You acknowledge that you are required to pay the full amount due for the Services each month through the Initial Term and Renewal Terms at no less than the monthly recurring marketing total listed in your Service Agreement. You will be required to agree to all applicable payment authorization forms which authorize recurring billing in accordance with your agreement. FR8 Media shall have the right to charge your credit card or debit from your account through ACH for Fees in accordance with these Terms of Service and the Service Agreement. Client warrants the validity of any ACH information provided to FR8 Media and acknowledges that FR8 Media is entitled to debit Client’s account for any ACH fees charged to FR8 Media due to Client’s error, including, but not limited to, incorrect information, invalid account numbers and non-sufficient funds. FR8 Media uses a credit card updating service that automatically updates credit card numbers where a credit card has expired or been replaced. You acknowledge that FR8 Media has a right to charge any credit card updated in this manner in accordance with these Terms of Service and the Service Agreement. YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL FEES MUST BE PAID IN ADVANCE AND THAT, IN ADDITION TO BEING IN BREACH OF YOUR CONTRACTUAL OBLIGATIONS, YOUR SERVICES MAY BE PAUSED OR TERMINATED IF TIMELY PAYMENT IS NOT RECEIVED OR IF A PAST PAYMENT HAS BEEN DISPUTED.
a. Term. The Agreement shall begin on the Effective Date and will remain in effect until terminated as provided below. For recurring accounts, the Service Agreement sets forth the minimum commitment term (the “Initial Term”) and authorizes recurring monthly billing for such period. Unless otherwise stated in the Service Agreement, all Websites FR8 Site Only plans or website hosting plans have a twelve (12) month Initial Term and all other plans have a six (6) month Initial Term. Your Initial Term may be extended by any added Service Order or Online Order Form. If there is a conflict the most recent agreement’s Initial Term shall control. Only months in which full payment has been received will count as a month of marketing under the Initial Term. Client acknowledges that Client’s digital marketing plan is designed based on the Initial Term defined in Client’s Service Agreement. After the Initial Term, the Term will be automatically renewed for successive one-month periods (each, a “Renewal Term”) or as otherwise provided in the Service Agreement (the Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”)
b. Cancellation. Client may cancel the services by providing no less than 30 days’ written notice of cancellation via mail or email addressed to Client’s Marketing Executive or Project Manager, as applicable. If you have not completed the Initial Term, cancellation will be effective at the completion of the Initial Term. If you have completed the Initial Term, services will continue through the end of the next applicable Renewal Term and will then be cancelled.
c. Early Cancellation. You acknowledge that FR8 Media requires a Setup Fee for all marketing accounts. FR8 Media agrees to waive this Setup Fee for all accounts that sign up for an Initial Term of six (6) months or more. If you wish to cancel the Services without completing the Initial Term you may do so only by providing both written notification of cancellation and previously waived Setup Fee. The amount of your Setup Fee is defined in your Service Agreement. If your Service Agreement does not define the Set Up Fee it shall be equal to $2,350.00. The Setup Fee payment is in addition to your monthly payments to date and may not be paid with credits on file or any prior payment. The Setup Fee must be provided within five (5) business days from our receipt of your written notice of early cancellation. No early cancellation of a Service Agreement will take effect until the Setup Fee has been paid, and you will continue to be billed monthly until we receive both proper written notice of cancellation and the Setup Fee, as applicable. Upon execution of this agreement, FR8 Media will be investing considerable work into your business and online marketing activities. This investment is being made with the understanding that you are committing to pay for the Services through the Initial Term. Client recognizes the aforementioned investment, up-front sales, setup, and opportunity costs that FR8 Media bears in connection with this marketing commitment, and acknowledges that this fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate FR8 Media for early cancellation of the Services. Client’s who signed a Service Agreement prior to November 10, 2020 do not have a Setup Fee, but instead may cancel prior to the end of the Initial Term only by paying an Early Cancellation Fee. The Early Cancellation Fee, if applicable, is defined in your Service Agreement. You acknowledge the aforementioned investment, up-front sales, setup, and opportunity costs that FR8 Media bears in connection with your Service Agreement and you acknowledge that this Early Cancellation Fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate FR8 Media for early cancellation of the Services.
d. Cancellation Revocation. You may, upon written notice (email is acceptable), revoke such cancellation after you have made a cancellation request, in which case the Service Agreement will be reinstated, and all applicable services will be reinstated upon payment in full of all amounts owed. If the cancellation fee has already been paid it shall be applied to any future amounts owed.
e. FR8 Media’s Right to Cancel. We may cancel this Agreement at any time for any reason, and in our sole discretion, by providing written notice of cancellation to you. Cancellation will take effect at the end of the then current billing period. Written notice may be provided to you via email. If we terminate this Agreement pursuant to this Section 5.e, we will reimburse you for any unused credits and funds within 30 business days from the effective cancellation date.
f. Pause or Downgrade of Service. During the Initial Term, you may request a pause or a downgrade in your Services, however it will be in FR8 Media’s sole discretion to determine if a pause or downgrade in Services is appropriate. No pause or downgrade during the Initial Term will be effective without a signed written confirmation from both FR8 Media and the Client. After the Initial Term, you may pause or downgrade your account with no less than 30 days’ written notice. After the Initial Term a downgrade that fully eliminates the recurring portion of certain services (e.g. NLA Credits, Ad Credits, Social Media Management, Reputations Management) shall be deemed a cancellation of such services and will terminate all FR8 Media obligations related to that service at the end of the then current billing cycle. Further, the Parties agree that any downgrade that eliminates the Fr8 Media Base Platform Fee (e.g. a downgrade to hosting services only) will terminate all FR8 Media obligations related to those removed services. The Parties agree that the preceding two sentences shall not apply to temporary downgrades accompanied by a signed agreement. Client may upgrade or reinstate services at any time with a written or oral request.
g. No Refunds and Unused Credits. Unless we cancel the agreement pursuant to Section 5.e., no refunds will be provided for any amounts already paid to FR8 Media. Upon cancellation of this agreement by you for any reason, any and all unused funds, credits or creative hours will be forfeited. If you are a Marketing Customer and downgrade to hosting only services or any other recurring services that do not include the Fr8 Media Base Platform Fee, any and all unused funds credits or creative hours remaining in your account at the time of the downgrade will be forfeited. The preceding sentence does not apply to temporary downgrades with a signed agreement.
h. Collection of Amounts Owed. You agree to pay all costs of collection (including attorneys’ fees, costs, and other legal and collection expenses) incurred by FR8 Media in connection with its enforcement of its right to payment under the Agreement. Any amounts not paid by you when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less).
i. Charge Disputes. If you dispute any payment with your credit card company or bank, and such dispute is resolved in FR8 Media’s favor, you will be assessed a charge of $100 per dispute initiated. You acknowledge that this amount is not a penalty, but a reasonable amount of liquidated damages to compensate FR8 Media for the additional costs incurred in defending your payment dispute.
7. Intellectual Property.
a. Your License Grant to FR8 Media During the Term, you hereby grant to FR8 Media a non-exclusive, royalty-free worldwide license to use, copy, backup, modify, display, broadcast, and transmit any of your content, including but not limited to your website, text, images, logos, copyrights, trademarks, service marks, promotional materials, photos, audio, and video content relating to your existing website, as applicable, to the extent necessary and for the sole purpose of allowing FR8 Media to perform the Services. This license will terminate upon termination of the Service Agreement.
b. Ownership of Creative Deliverables and Content Upon receipt by FR8 Media of full, unconditional payment from Client, Client shall own all rights, title, and interest in and to the Creative Deliverables created under this Agreement. FR8 Media will retain a non-exclusive, non-revocable license in the completed Creative Deliverables, and FR8 Media reserves the right to use the Creative Deliverables for advertising, publication, promotion, display or other purposes.
c. Ownership of non-custom Website Design Notwithstanding Section 7.b. and Section 7d, FR8 Media retains all copyrights in all non-custom website designs delivered under this Agreement in accordance with Section 1.i. Upon valid cancellation of this Agreement in accordance with Section 6, and so long as full, unconditional payment has been received by FR8 Media for any amounts owed by Client under this Agreement, Client will be granted a perpetual, royalty-free, revocable, non-transferable license to use, copy, and publish any website design and related materials delivered to Client under this Agreement. FR8 Media reserves the right to revoke this license only if either (1) Client does not fulfill the Initial Term and/or pay the waived Setup Fee fee or (2) Client initiates a payment dispute for any past payment.
d. Websites FR8 License FR8 Media grants Client, during the Term for which Client has paid the applicable Fees, a non-exclusive, non-transferable and revocable license, subject to this Agreement and any qualifications contained herein, to access and use the Websites FR8 Service for displaying a Websites FR8 website design. This license is limited, non-sublicensable, and intended solely for the purpose of accessing and using the Websites FR8 Service in connection with the creation of Client websites hosted by Fr8 Media. This license to access the Websites FR8 will terminate upon cancellation or non-payment of any applicable fees.
e. Work Product Ownership. Any copyrightable works, ideas, discoveries, inventions, patents, products, marketing data, marketing campaigns or other information (collectively, “Work Product”) developed in whole or in part by FR8 Media during the course of this Agreement but excluding the Creative Deliverables and any materials referenced as belonging to Client pursuant to Section 7a. above, shall be the exclusive property of FR8 Media.
f. Trademarks. All trademarks used in this agreement and used in conjunction with the Services are the property of their respective owners or licensors. With the exception of the trademark rights explicitly granted in this Agreement, no other rights to any trademarks are granted herein. Use of the FR8 Media trademarks without the express written consent of FR8 Media is prohibited.
8. Authorization and Limited License to the Access FR8 Media Software Platforms Upon execution of a marketing Service Agreement, and for so long as your Service Agreement is in effect and you are current on all applicable fees or payments, you will be granted a revocable, non-transferable, non-sublicenseable, non-exclusive limited license to access the FR8 Media Software Platforms. You acknowledge and agree that you do not have, nor will you claim any right, title or interest in the FR8 Media Platforms, including, without limitation, FR8 Media, Websites FR8, Freighting Network, the platforms, software, data, applications, methods of doing business, or any other content provided through FR8 Media whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the FR8 Media Platforms and Services, are and will remain with FR8 Media. You may only access the FR8 Media Platforms via a web browser or mobile application. Your access shall be password protected and you acknowledge that you shall not share your password or otherwise permit any other person to access or use the FR8 Media Platform or Services except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits: (a) copy, modify, or create derivative works or improvements of FR8 Media Platform or Services; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the FR8 Media Platform or Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Fr8 Media systems, in whole or in part; (d) bypass or breach any security device or protection used by the FR8 Media Platforms or Services, or access or use the FR8 Media Platform or Services other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit or otherwise provide to or through the Services or FR8 Media’s systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, FR8 Media’s systems or FR8 Media’s provision of services to any 3rd Party, in whole or in part; (g) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property, or proprietary rights notices from any Services or other FR8 Media materials, including any copy thereof; (h) access or use the FR8 Media Platforms or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of FR8 Media or any 3rd Party or in a way that violates any applicable law; (i) access or use the FR8 Media Platforms or Services for purposes of competitive analysis of the Services, for the development, provision, or use of a competing software service or product, or any other purpose that is to Fr8 Media’s detriment or commercial disadvantage. In addition to the other remedies FR8 Media may have, FR8 Media may terminate the foregoing license and this Agreement if it determines, in its sole discretion, that you have violated the provisions of this license.
9. Representations By signing, you personally represent that (a) you have the power to enter into this Agreement and be bound to its obligations hereunder on behalf of the Client; (b) the execution of this Agreement by the Client has been authorized by all necessary corporate actions; and (c) upon execution of the Service Agreement, this Agreement constitutes a legal, valid, and binding obligation of Client, enforceable against Client in accordance with its terms. Client further represents that Client has the right to enter this agreement and use all intellectual property, including, but not limited to copyrighted materials and trademarks, supplied to FR8 Media for use in conjunction with the services.
10. Agency If you are purchasing the Services on behalf of another company, you personally represent and warrant that you have been authorized by such company to act as its agent in all respects related to the agreement. Without limiting the foregoing, you agree on behalf of each such company that such company has been made aware of, and agrees to be bound by, these Terms of Service.
11. DISCLAIMER OF WARRANTIES FR8 MEDIA PROVIDES ALL SERVICES ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES. THE SERVICES ARE PROVIDED WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE SERVICES ARE INTERRUPTED OR DELAYED, FR8 MEDIA’S SOLE OBLIGATION WILL BE TO RESTORE OR PROVIDE SUCH SERVICES AS SOON AS PRACTICAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FR8 MEDIA DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, FR8 MEDIA MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT OR SERVICE.
12. LIMITATIONS OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY LAW, FR8 MEDIA SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE INDEMNIFICATION SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL 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 TOTAL OF THE AMOUNTS YOU PAID TO FR8 MEDIA IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. WITHOUT LIMITING THE FOREGOING, FR8 MEDIA IS NOT RESPONSIBLE FOR ANY DAMAGES DUE TO ANY CONTENT, OMISSIONS, OR ERRONEOUS DATA APPEARING IN CLIENT’S WEBSITE, BLOGS, OR ON SOCIAL MEDIA OR ANY LOSS, DAMAGE, CORRUPTION, OR BREACH OF CLIENT DATA WITHIN CLIENT’S FR8 MEDIA ACCOUNT. WE FURTHER DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE IN CONJUNCTION WITH THESE SERVICES.
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.
13. Dispute Resolution
a. Good Faith and Cooperation. Each of the Parties agrees to cooperate in good faith, reasonably, and in such a manner as may be necessary or appropriate to implement and give effect to the terms, conditions, and agreements contained herein. Each Party agrees to contact the other in writing (email is acceptable) regarding any claims, disputes, or controversies, and allow the other Party no less than 30 days to cure the issue or demonstrate that there is in-fact no issue present under these Terms of Service prior to initiating any formal legal action, payment dispute, or publishing any disparaging comments detrimental to the reputation, business, or business relationships of the other.
b. Agreement to Arbitrate. If the Parties are unable to resolve a dispute in Good Faith, the Parties hereby agree to resolve any and all disputes, controversies, or claims arising out of, relating to, or in connection with this Agreement and/or the Services, including the breach, termination, or validity thereof, through confidential binding arbitration in Fort Collins, Colorado by a single arbitrator. Such arbitration shall be administered by the American Arbitration Association (AAA) and conducted pursuant to the Expedited Procedures of the Commercial Arbitration Rules (CARs) of the AAA. The Parties further agree that they may only bring or participate in claims against the other in their respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. The Parties further agree that the arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
c. Exceptions to Agreement to Arbitrate. FR8 Media may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services or for intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the Good Faith dispute-resolution process described above. In the event that the Parties agreement to arbitrate is found not to apply for any reason, all actions relating to or in connection with this Agreement shall be brought in the state and federal courts located in Larimer County, Colorado and Denver County, Colorado, respectively. The Parties consent to venue and personal jurisdiction in these courts for the limited exceptions under this Section 12.c.
d. Costs and Attorney’s Fees: Except as otherwise provided in these Terms of Service, the Parties will be responsible for their own costs and legal fees.
e. Voluntary and Knowing Waiver. BY ENTERING INTO THIS ARBITRATION AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND THAT IT WAIVES ANY RIGHT TO BRING AN ACTION AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT CLIENT WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
14. Indemnification. You agree to indemnify, defend, and hold FR8 Media harmless from any and all liability, claims, damages, and settlements due to any third party claims or causes of action, (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to Client’s (a) illegal or unauthorized use of the Services, or (b) noncompliance or breach of any of these Terms of Service by you or any third party (authorized, permitted or enabled by Client). This indemnification includes, but is not limited to, any actions, including actions alleging or related to: infringement of any intellectual property (including trademark, patent and copyright actions), defamation, false or misleading advertising, end user personal or financial data, applicable privacy laws, PCI compliance, Client’s order processing, billing, fulfillment, shipment, collection, or actions related or associated with any products or services offered, sold, or licensed through Client’s website.
15. Non-Solicitation. You agree not to directly or indirectly solicit, hire, recruit, or attempt to solicit, hire, or recruit, any employee of FR8 Media or its subsidiaries, or induce the termination of employment of any FR8 Media employee during the Term and for a period of three (3) years following the termination of this Agreement.
a. Choice of Law: This agreement and its interpretation, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the state of New Jersey without giving effect to conflict of laws principles
b. Entire Agreement. These Terms of Service together with the applicable Service Agreement constitute the entire agreement between the Parties. All prior agreements, discussions, representations, warranties and covenants are merged herein. FR8 Media limits acceptance to these agreements, and objects to any other additional or different terms in the Client’s acceptance
c. Amendment/No Waiver. We may update and change any part or all of these Terms of Service. If we update or change the Terms of Service, the updated Terms of Service will be posted at http://fr8.media/terms and we will let you know via email and/or via notification in the Fr8 Media Platforms. If you do not agree with a modification to the Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Terms of Service prior to modification for the remainder of your Initial Term or your current Renewal Term. Upon renewal, the Terms of Service published on our website will apply. Any material amendment to your Service Agreement must be contained in writing and executed by the Parties. The failure by either Party to require performance of any provision shall not constitute a waiver nor affect that Party’s right to require performance at any time thereafter.
d. Electronic Signatures. Each party agrees that electronic signatures have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, click box or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.
e. Severability. If any provision of this Agreement or the application thereof is held invalid, illegal, or unenforceable by any court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants, and restrictions of this Agreement will remain in full force and effect.
f. Assignment. Neither Party may assign any part of the Agreement without the prior written consent of the other Party, provided, however, that either Party may freely assign this Agreement in connection with a sale of substantially all of its assets or a change of control of at least 50% of the voting equity interests of the business effective upon written notice to the other Party.
g. No Third-Party Beneficiaries. The parties do not confer any rights or remedies upon any person other than the parties to this Agreement and their respective successors and permitted assigns.
h. Third-Party Sites and Products. Third party sites and products are not under our control and are provided to you only as a convenience. The availability of any third party website or product does not mean we endorse, support or warranty the 3rd Party site or product. We do not warranty the performance of any third party product or service. If you are using a FR8 website, certain FR8 plugins may be required for certain website functionality. You will be required to create your own FR8 account to access these plugins for your website, and you may be required to pay FR8 an additional fee for certain plugins.
i. EU/EEA Data Processing. To the extent that we process customer data that is subject to the European Union General Data Protection Regulation (“GDPR”) on your behalf, such processing will be undertaken pursuant to the terms of the FR8 Media Data Processing Agreement (the “DPA”) located at https://www.fr8.media/data-processing-agreement/. Please contact your Fr8 Media representative to receive a signed version of the DPA. The DPA is hereby incorporated by reference for all accounts whereby we process data subject to the GDPR. You acknowledge that in all cases FR8 Media acts as the data processor of this data and you are the data controller of the data. You are required under the GDPR to obtain and maintain documentation of the applicable legitimate purpose and consent to process any GDPR data shared with FR8 Media under this Agreement.
j. Google Third Party Disclaimer. FR8 Media resells Google AdWords as a Google Third Party Partner. For more information on this program please see Google’s “Working with a Third-Party Disclaimer” located at http://www.google.com/adwords/thirdpartypartners/.
k. Bing Ads Agreement. FR8 Media resells Bing Ads as a Bing Ads Elite SMB Partner, if you use our services to market on Bing you agree to be bound by the Bing Ads Agreement located at: https://advertise.bingads.microsoft.com/en-us/resources/policies/microsoft-bing-ads-agreement.
l. Facebook Advertising Guidelines. Your use of these services in connection with Facebook ads is subject to separate terms and conditions, including Facebook’s Advertising Guidelines (currently accessible at https://www.facebook.com/policies/ads, as updated by Facebook from time to time).
m. Relationship of the Parties. The Parties to the agreement are independent contractors, and no agency, partnership, joint venture, or employee/employer relationship is intended or created.
n. Referrals. FR8 Media may provide incentives to 3rd parties to introduce potential Clients to FR8 Media. From time to time, FR8 Media may receive referral fees, incentives, revenue shares or rebates (the “Incentives”) from 3rd party advertisement providers, payment processors, and/or other 3rd parties based on hitting revenue or advertising spend thresholds or referring potential customers to the 3rd party provider. You acknowledge that you are not entitled to any Incentive or share of any Incentive received by FR8 Media.
o. Survival. The sections labeled Intellectual Property, Confidentiality, Disclaimer of Warranties, Limitations of Liability, Dispute Resolution, and Indemnification are intended to survive the termination, cancellation or expiration of this agreement. Notwithstanding the foregoing, Client remains liable for any amounts due to FR8 Media as of the effective date of termination.
p. Subcontracting. FR8 Media may, without your consent, subcontract to any party the performance of all or any of FR8 Media’s obligations under this Agreement provided that FR8 Media remains primarily liable for the performance of those obligations.
q. Taxes. Sales tax and/or VAT tax may be added to certain products or services in certain states and countries. Sales and VAT taxes are automatically calculated based on Client’s billing address and the product or services on Client’s invoice. Client is responsible for any sales, use or VAT taxes not collected by FR8 Media.
r. Call Recording. You acknowledge that we may record Client phone calls for quality control purposes.
s. CCPA Contract Clauses. If we are processing data for you that is protected by the California Consumer Privacy Act (CCPA) such data will be processed in accordance with our CCPA Contract Clauses located at fr8.media/ccpaclauses. If you are covered by the CCPA, it is your obligation to inform us of those obligations so that we can provide you with the CCPA Contract Clauses to sign.
t. Trade Name. FR8 Media is a federally registered trademark and registered trade name of MWorld, Corp., LLC a Colorado limited liability company
v. Headings. Section headings are provided for reference purposes only and in no way define, limit, construe, or describe the scope or extent of any section
w. Force Majeure. Neither party shall have any liability for any failure or delay (other than for an obligation to pay) resulting from any government action, natural disaster, power failure, or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.
x. Notices. All notices required by one party hereunder shall be provided in writing to the other Party at the mailing address or email address provided to the other Party from time to time in writing.