Terms of Service
Pranks LLC Marketing Services Agreement (DBA Spark Media)
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Last updated: 9/2023
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This Marketing Services Agreement (“Agreement”) is hereby entered into between Spark Media and ("Client") and applies to the purchase of all Marketing Services provided by Spark Media during the term of this agreement (hereinafter referred to as “Marketing Services”) ordered by the Client.
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1. Term and Termination
This Agreement shall be effective as of the time frame the Client signs up for Marketing Services. The initial term of this Agreement shall be for one month, and it shall automatically renew for successive one-month terms unless either party provides written notice of termination at least 30 days prior to the end of the current term. However, this Agreement may be terminated by either party at any time, with or without cause, upon 30 days written notice to the other. Either party may also terminate the Agreement if (i) the other party commits a material breach of this Agreement and such party does not cure the breach within 30 days of written notice from the non-breaching party of such breach. This Agreement may also be terminated by Spark Media (i) immediately if the Client fails to pay any fees hereunder; or (ii) if the Client fails to cooperate with Spark Media or hinders Spark Media’s ability to perform any Marketing Services hereunder. If the agreement is terminated by Spark Media prior to the end of the term, the Client will be refunded the prorated fee minus 20% of the package price.
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2. Marketing Services
Spark Media agrees to provide the Client with Marketing Services as described in this Agreement. Marketing Services may include but are not limited to social media management, content creation, digital advertising, search engine optimization, email marketing, and influencer campaigns. The specific scope of Marketing Services shall be detailed in an addendum to this Agreement, which shall be mutually agreed upon by both parties.
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3. Fees; Limitations on Refunds and Cancellation Fees
The Client agrees to pay Spark Media any and all fees as billed in accordance with this Agreement. The fees must be received prior to the start of any Marketing Services. The Client further agrees that, in the event of any termination of this agreement by the Client, no refunds shall be given under any circumstances whatsoever. The Client further agrees to pay upon cancellation the amount of any cancellation fees or other amounts due to Spark Media as provided in the agreement. Spark Media is hereby authorized to charge the Client’s credit card account or other payment mechanism for any amounts owed from time to time by the Client to Spark Media. Spark Media shall provide the Client with detailed invoices for all fees and expenses incurred under this Agreement.
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4. Customer Acknowledgements
The Client understands, acknowledges, and agrees that:
- Spark Media has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future.
- The Client's website(s), Instagram accounts, and Facebook accounts may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.
- The success of the Marketing Services may vary depending on various factors, including the Client's industry, target audience, and competitive landscape.
- The Client must actively engage with their social accounts, including posting, creating stories, reels, and being tagged in posts, to maximize the benefits of Marketing Services.
- Spark Media may use artificial intelligence and automated tools to target and attract followers to the Client's social media accounts.
- Spark Media is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors or misspellings in articles created by third parties or the Client.
- Spark Media is not responsible for changes made to the Client's website(s) or accounts by other parties.
- Spark Media is not responsible for any technical issues arising from third-party hosting companies.
- Spark Media is not responsible for any lost followers once an order is completed.
- Spark Media does not guarantee a specific number of followers, likes, or engagements on social media platforms.
- The Client shall provide Spark Media with access to their social media accounts and any other necessary information or materials required to perform the Marketing Services.
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5. Indemnification
The Client shall indemnify and hold harmless Spark Media (and its subsidiaries, affiliates, officers, agents, co-branders, or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Spark Media as a result of any claim, judgment, or adjudication against Spark Media related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data, or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by the Client to Spark Media (the “Client Content”), or (b) a claim that Spark Media’s use of the Client Content infringes the intellectual property rights of a third party. The Client shall promptly notify Spark Media in writing of any such claim and shall cooperate fully with Spark Media in the defense of such claim.
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6. Disclaimer of All Other Warranties
Spark Media does not warrant that its services will meet the Client’s expectations or requirements. The entire risk as to the quality and performance of the Marketing Services is with the Client. Except as otherwise specified in this agreement, Spark Media provides its services “as is” and without warranty of any kind. The parties agree that (a) the limited warranties set forth in this section are the sole and exclusive warranties provided by
each party, and (b) each party disclaims all other warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose, relating to this agreement, performance, or inability to perform under this agreement, the content, and each party’s computing and distribution system. Spark Media does not guarantee the results of any Marketing Services or the accuracy, completeness, or usefulness of any information or content
provided as part of the Marketing Services. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
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7. Limited Liability
In no event shall Spark Media be liable to the Client for any indirect, special, exemplary, or consequential damages, including any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from the course of dealing or course of performance, lost profits, whether or not foreseeable or alleged to be based on breach of warranty, contract, negligence, or strict liability, arising under this agreement, or any performance under this agreement. There shall be no refunds. Spark Media makes no warranty of any kind, whether express or implied, with regard to any third-party products or third-party content. The Client acknowledges and agrees that the entire risk arising out of the use of the Marketing Services, including but not limited to the risk of physical harm, remains with the Client. The Client agrees that the liability of Spark Media, if any, arising out of any kind of legal claim (whether in contract, tort, or otherwise) shall not exceed the amount paid by the Client to Spark Media under this Agreement for the specific Marketing Services giving rise to such claim.
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8. Customer Representations
The Client makes the following representations and warranties for the benefit of Spark Media:
- The Client has the right, power, and authority to enter into this Agreement and to perform all of its obligations hereunder.
- The Client has obtained all necessary rights, licenses, permissions, and consents to use, reproduce, display, distribute, or otherwise exploit any content provided by the Client to Spark Media as part of the Marketing Services.
- The Client's use of the Marketing Services, including any content provided by the Client, does not and will not infringe or violate the rights of any third party, including but not limited to copyright, trademark, patent, trade secret, privacy, publicity, or other proprietary rights.
- The Client shall comply with all applicable laws, regulations, and industry standards in connection with its use of the Marketing Services.
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9. Confidentiality
The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Spark
Media and the Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
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10. Force Majeure
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
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11. Relationship of Parties
Spark Media, in rendering performance under this Agreement, shall be deemed an independent contractor, and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. The Client does not undertake by this Agreement, or otherwise, to perform any obligation of Spark Media, whether by regulation or contract. In no way is Spark Media to be construed as the agent or to be acting as the agent of the Client in any respect, any other provisions of this Agreement notwithstanding.
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12. Notice and Payment Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party, mailed by certified, registered or Express mail, return receipt requested, or by Federal Express. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
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13. Jurisdiction/Disputes
This Agreement shall be governed in accordance with the laws of the State of Tennessee. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Tennessee, including the federal courts therein, and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to them.
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14. Agreement Binding on Successors
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors, and assigns.
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15. Assignability
The Client may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Spark Media. Spark Media reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
16. Waiver
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement.
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17. Severability
If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause, or provision, and such invalid term, clause, or provision shall be deemed to be severed from the Agreement.
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18. No Inference Against Author
No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
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19. Disputes
The Client and Spark Media agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, may be submitted for judicial determination in Shelby County, Tennessee, by either party.
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20. Read and Understood
Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions. The parties enter into this Agreement voluntarily and with a full understanding of its effect. This Agreement supersedes any prior agreements, understandings, or representations between the parties concerning the subject matter hereof.