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January 16, 2025

DEFINITIONS:

All terms and definitions from the Service Agreement shall apply and be incorporated to these Terms of Service.

Damages. “Damages” shall include any type of damages that are or could be awarded by any court or arbitration panel, such as, by way of general example but not limitation, tort damages, strict liability damages, liquidated damages, and/or punitive damages. By way of specific example, but not limitation, damages may include loss of use, loss of profits, cost of capital, replacement, loss of wages, pain and suffering, loss of production, cost of replacement facilities, equipment and/or product loss, decrease in value, and/or any other item of damage or loss. This waiver shall not apply to any amounts due to Responsify under the terms of Agreement.

Agreement. “Agreement” shall refer exclusively to the Responsify Service Agreement… 

Service Renewal: To avoid any interruption in services provided under this Agreement by Responsify, this Agreement shall automatically renew at the end of the initial term for an additional Service Period beginning on the first date of the calendar month immediately subsequent to the expiration of the initial term, unless either Party gives the other Party written notice of discontinuation at least thirty (30) calendar days before and not more than ninety (90) calendar days prior to the end of the initial term. Each and any subsequent term of this Agreement shall similarly automatically renew at the end of any subsequent term for an additional Service Period upon the same terms and conditions of the initial term, unless either Party gives the other Party written notice of discontinuation at least thirty (30) calendar days before and not more than ninety (90) calendar days prior to the end of the subsequent term. 

Source Files. Source Files are files that include preliminary research or drafts used to produce the final Deliverables for Client.

Acknowledgment

These are the Terms of Service governing the use of Responsify’s Service and the Agreement that operates between You and the Responsify. These Terms of Service set out the rights and obligations of all users regarding the use of the Service. Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms of Service. These Terms of Service apply to all visitors, users and others who access or use the Service. By accessing or using the Service and signing the Agreement You agree to be bound by these Terms of Service. If You disagree with any part of these Terms of Service then You may not access the Service or sign the Agreement.

Amendment and Modification.  This Agreement and any incorporated Exhibits and schedules attached hereto and made a part hereof, if any, may be modified, amended, altered or revoked, in whole or in part, only by written instrument or other form of modification executed by authorized representatives of the Parties hereto and signed by both parties hereto.  This Agreement and any incorporated Exhibits and schedules attached hereto and made a part hereof, if any, may not be modified, amended, altered or revoked, in whole or in part, by any oral agreements, by any implied agreement or custom, or by any waiver of any of its terms unless in writing.

Compliance with Law.  The Parties represent and warrant that they are and shall be in compliance with all applicable federal, state, and local laws and regulations, including, but not limited to, all regulations, rules and/or laws as required by the Federal Occupational Safety and Health Act (OSHA), the Illinois Department of Labor (IDOL), the U.S. Department of Labor (USDOL), U.S. Equal Employment Opportunity Commission (EEOC), the Illinois Department of Human Rights, and/or the Human Rights Commission and all applicable local and state Ordinances and Codes (collectively, the “Laws”).  To the fullest extent permitted by law, the Parties shall indemnify, defend, and hold harmless one another (and their officials, officers, members, directors, stockholders, employees, agents, affiliated and related agents and affiliated and related companies) from loss or damage, including, but not limited to attorneys’ fees and other costs of defense by reason of actual or alleged violation of any Laws or Law.  This obligation shall survive the expiration and/or termination of this Agreement. 

Limited Warranty. Responsify warrants, for a period of thirty (30) days following delivery of any services hereunder (the “Warranty Period”), that all Services will be performed in a professional manner and in accordance with generally applicable industry standards. The Warranty Period start date shall not apply to latent defects. The exclusive remedy shall be for Responsify to re-perform any deficient services, or, if Responsify is unable to remedy such deficiency within thirty (30) days, to void the invoice for the deficient services. Responsify shall have no obligation with respect to any Warranty claim if the claim is the result of third-party services software not recommended by Responsify, the actions of Client contrary to the instructions of Responsify, or the actions or omissions of some other party, or is otherwise caused by factors outside the reasonable control of Responsify. 

THIS SECTION IS A LIMITED WARRANTY AND SETS FORTH THE ONLY WARRANTIES MADE BY RESPONSIFY. RESPONSIFY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, CONCERNING ANY GOODS AND/OR SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM THE COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE, OR ANY WARRANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED OR INSTALLED BY RESPONSIFY. CLIENT MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD.

Independent Contractor. Responsify is an independent contractor. Neither Responsify nor Client are, or shall be deemed for any purpose to be, employees or agents of the other, and neither Party shall have the power or authority to bind the other Party to any contract or obligation.

Financial Confidentiality: Client may not discuss any financial information, including costs of Responsify services with anyone other than their appointed Responsify AM.

Default by Client. Client is in default of this Agreement if it (a) fails to cure any monetary breach that has not been disputed in good faith by Client pursuant to this Agreement within thirty (30) days of receipt of written notice by Responsify; (b) fails to cure any non-monetary breach of any terms of this Agreement within thirty (30) days receipt of written notice  by Responsify; or (c) files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency, or other similar law (each such event shall be a “Client Default”) and such proceeding remains undismissed, undischarged, or unbonded for a period of sixty (60) days. 

In the event of a material Client Default, Responsify may suspend services to Client until Client remedies the Client Default, or Responsify may terminate this Agreement and/or any or all of the services being provided hereunder. Further, any unpaid fees for the pending Service Period will become immediately due. These remedies are in addition to and not a substitute for all other remedies contained in this Agreement or available to Responsify at law or in equity. 

Default by Responsify. Responsify is in default of this Agreement if it fails to cure any non-monetary breach of any material term of this Agreement within thirty (30) days of receiving written notice of the breach from Client (“Responsify Default”); Client’s sole and exclusive remedy for any failure of Service is limited to the remedies set forth in the Limited Warranty and Limitation of Liability sections of this Agreement. In the event of a Responsify Default, Client may terminate the Services and this Agreement upon written notice to Responsify. Any termination shall not relieve the Client of its obligations to pay all reasonable, documented charges incurred hereunder prior to such termination. 

 In the event that Responsify fails to provide a Deliverable in accordance with the Scope & Deliverables section in the Agreement or that the Deliverable does not comply with Client’s local, state, or federal laws, the Client’s assigned SPOC may submit a “Non-Performance Claim” by completing Responsify’s Non-Performance Claim Form at https://www.responsify.com/non-performance-claim. Following the submission of any such Non-Performance Claim, Responsify will review any claim made and inform the Client’s assigned SPOC of the determination of each claim’s validity in writing by email within (10) business days (excluding national US holidays) to be considered the “Non-Performance Claim Determination Notice”. If the Non-Performance Claim is found to be valid by Responsify, Responsify agrees to cure any specified defects for specified Deliverable listed in the Scope & Deliverables section above within (30) calendar days from date of Non-Performance Claim Determination Notice delivery. 

Payment Disputes. To the extent that Client disputes any portion of the monthly payment installments,  Client’s SPOC shall notify Responsify in writing and provide details as to the reasons why the disputing party (“Disputing Party”) disputes the monthly payment within thirty (30) days of the invoice date. In the event of a billing dispute, Client shall timely pay all undisputed amounts. If the dispute is resolved against Client, Client shall pay such amounts due from the original Due Date. If the dispute is resolved in favor of the Client, Responsify shall void the invoice Client may not offset disputed amounts from one invoice against payments due on the same or another account.

Liquidated Damages. The Parties acknowledge that the actual damages likely to result from a material breach of the terms of the Service Agreement are difficult to estimate, not only on the Effective Date, but also during any Service Period when services and cooperation between the Parties remain in effect. Therefore, should either Party cancel the Agreement and/or any Service Order without cause, or should either Party breach a material term of the Service Agreement and fail to cure the defect or breach in the time provided under the terms of the Service Agreement and these Terms of Service, the non-offending Party shall have the right to terminate the Service Agreement effective immediately and the offending Party shall pay the non-offending Party a one-time fee equal to the amount of the payment installments remaining under the current Service Period of the Service Agreement. 

Damages Cap. The liability of either Party to the other Party, whether based on an action or claim in contract, equity, negligence, tort, or otherwise, for any event, act, or omission occurring during the Term, shall not exceed, an amount equal to the lesser of (1) the Fees paid or payable by Client for the Service Period or, (2) the total amount of the payment installments owed under the current Service Period of the Service Agreement.

Limitation of Liability. To the maximum extent permitted by law, other than damages proximately caused because of willful misconduct on the part of either Party, neither Party, its representatives, successors, or assigns accept liability beyond the remedies set forth herein, including any liability in tort or contract. The Parties acknowledge this risk allocation by execution of this Agreement and/or by the payment of fees to Responsify. In no event will either party be liable for loss of business or reputation, or other consequential, special, incidental, exemplary, indirect, or punitive damages, even if advised of the possibility of such damages, or for any claim by any third party except as expressly provided herein, other than as expressly provided in the Service Agreement and these Terms of Service. Nothing contained in this paragraph shall be deemed to preclude an award of liquidated direct damages, when applicable, in accordance with the requirements of the Service Agreement and these Terms of Service.

Relationship Between the Parties.  The Parties are independent companies and not a subsidiary, parent or sister company or entity of each other.  This Agreement is not intended to and does not create or establish between the Parties any relationship as partners, joint venturers, employer and employee, master and servant, or of principal and agent, and does not create or establish any relationship whatsoever between the Parties and any affiliate, representative or employee of the other Party.

Force Majeure.  Except with regard to any obligation to pay money hereunder, neither Party hereto shall be held responsible for any delay or failure in performance hereunder caused in whole or in part by fire, strike, flood, embargo, labor dispute, delay or failure of any subcontract, telecommunications failure, act of sabotage, riot, accident, delay of carrier or supplier, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond such Party’s control.  If any such contingency does occur, the time to perform an obligation under this Agreement affected thereby shall be deemed extended by the length of time such contingency continues.

Successors.  This Agreement and any Exhibits or schedules referred to and incorporated herein, if any, and all indemnities, covenants and agreements, representations and warranties contained herein shall be binding on and shall operate to the benefit of the Parties hereto, and to their respective successors in interest, assigns, heirs, executors, administrators, legal representatives and any other party claiming an interest by, through or under them.

Survival of Obligations. Except as otherwise provided, any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement, including, without limitation, sections pertaining to Indemnity, shall survive the expiration of this Agreement.

Reasonableness and Good Faith.  Notwithstanding anything to the contrary contained in this Contract, all consents and approvals of the Parties as set forth herein shall be reasonable, exercised in good faith, and not unreasonably withheld.

Entire Agreement.  The Agreement contains all of the agreements, conditions and understandings of the Parties and supersedes and merges all prior negotiations, representations, or agreements between them, whether oral or written, relating to the subject matter hereof between the Parties.  In the event of a conflict between the terms of this Agreement and any other documents, including the Exhibits and schedules to which this Agreement may refer, if any, the terms and conditions of this Agreement shall apply.  To the extent the practices, policies, or procedures of the Parties, now or in the future, are inconsistent with the terms of this Agreement, the provisions of this Agreement shall control.  This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against the Parties. Except as set out in this contract, all warranties, representations, conditions, terms, and undertakings, express or implied, whether by statute, common law, custom, trade usage, course of dealings, or otherwise (including without limitation as to quality, performance or fitness or suitability for purpose) in respect of the goods to be provided by the seller under this contract are excluded to the fullest extent permitted by law.

Partial Invalidity and Severability.  In the event any term, section, subsection, part, condition, paragraph, subparagraph or provision of the Agreement is invalid or unenforceable for any reason (or the application of such term, section, subsection, part, condition, paragraph, subparagraph, or provision to persons or circumstances other than those in respect of which it is invalid or unenforceable), the remainder of this Agreement shall continue and not be affected thereby, and each and every term, section, subsection, part, condition, paragraph, subparagraph, and provision of this Agreement shall be deemed valid and enforceable to the fullest extent possible permitted by law.

No Third Parties, Waiver Generally and/or Waiver of Statutory Immunities. Notwithstanding any provision herein to the contrary, this Agreement is entered into solely for the benefit of the contracting Parties, and nothing in this Agreement is intended, either expressly or impliedly, to provide any right or benefit of any kind whatsoever to any person and/or entity who is not a party to this Agreement.  Nothing herein shall be construed as an express and/or implied waiver of any common law and/or statutory immunities and/or privileges of Responsify and/or its respective officials, officers, employees, volunteers and/or agents.  No waiver of any provision of this Agreement or attached and incorporated Exhibits, if any, shall be implied by any failure of the Parties to enforce any remedy on account of the violation of this Agreement, even if such violation be continued or repeated; no express waiver by the Parties shall be valid unless in writing and then only to the extent specified in such waiver.  No receipt of monies by Responsify or Client from the other after the termination of this Agreement shall in any way alter the length of the term of this Agreement or Client’s remedies hereunder.  After the service of notice, commencement of a suit, or taking of a judgment, Client may receive and collect any amount due and owing under the terms of this Agreement, if any, without affecting said notice, suit, or judgment.

Construction. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that limiting such provision would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited. The failure of a Party to insist upon the performance of any provision of this Agreement or to execute any right or privilege granted that Party in a particular instance or set of instances, shall not be construed as a waiver of any rights or remedies, and such provision will continue in force. It is the intention of the parties that every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any party (notwithstanding any rule of law requiring an Agreement to be strictly constructed against the drafting party), it being understood that the parties to this Agreement are sophisticated and have had adequate opportunity and means to retain counsel to represent their interests and to otherwise negotiate the provisions of this Agreement. 

Sections, paragraphs, captions and headings are used for reference purposes only and should be ignored in the interpretation of this Agreement.  The terms “Section”, “Paragraph”, “Caption” and “Heading” shall refer to the same concept and may be used interchangeably. Captions and headings contained in this Agreement are inserted only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision of this Agreement.

Whenever the feminine, masculine, neuter, singular or plural shall be used in this Agreement, such construction shall be given to such words or phrases as shall impart to this Agreement a construction consistent with the interest of the Parties entering into this Agreement.  Where used herein, the term “Federal” shall refer to the U.S. Federal government.  As used herein, (a) “or” shall mean “and/or” and (b) “including” or “include” shall mean “including without limitation”.

Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Illinois, excluding that State’s choice-of-law principles, and all claims relating to or arising out of this Agreement, or the breach thereof, whether in contract, tort or otherwise, shall likewise be governed by the laws of the State of Illinois, excluding that State’s choice-of-law principles. The exclusive venue for the enforcement of this Agreement and/or litigation between the Parties shall be the Circuit Court of Cook County, Illinois; or, if a Federal court is proper, then the exclusive venue shall be the Northern District of Illinois. Further, Client hereby waives its right to a trial by jury in any claims arising from the Agreement. 

LEGAL EFFECT

Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the Parties and enforced as modified. All other terms and conditions of this Agreement shall remain in full force and effect and shall be construed in accordance with the modified provision.

Dispute Resolution

In the event of any dispute regarding the Agreement, or the work performed thereunder, , each party to Agreement shall continue to diligently perform under the terms of Agreement without interruption, deficiency, or delay. All disputes between Responsify and Client , shall be mediated by an alternative dispute resolution service chosen by Responsify unless both Responsify and Client agree to settlement by another method.

Agreement Termination: This agreement is only terminable for cause. Either party may terminate this Agreement if a Party materially breaches its obligations under this Agreement, and such breach is not cured within thirty (30) days after delivery of the non-breaching party’s notice or such longer time as the non-breaching Party may specify in the notice. 

Call and Meeting Recording: Responsify reserves the right to record all calls and meetings with members of Client’s team to gather information and for quality assurance purposes.

Non-Hire or Employ: Client agrees to not hire or employ any former or existing Responsify employee or Responsify sub-contractor while Agreement is effective or (1) calendar year after termination of Agreement. 

Payment Installments on Agreements including Service Period(s) : Client agrees to establish a source of payment with Responsify, using the payment setup at the end of the agreement signing process, if not already previously established, either with a business credit card or bank account for ACH payments to be considered the Client’s “Payment Source”. Once this Payment Source is established, Client agrees to all payments or fees described in Agreement to be charged to the Payment Source set up by Client to Responsify. Client agrees to be charged monthly, consecutive, uninterrupted, non-refundable, automatic/scheduled payment installments as specified in the Agreement. If Client wishes to pay using a business credit card, Client agrees to pay an additional 3% transaction fee. If Client is outside the United States, Client agrees to pay by credit card and pay a total of 5% in payment transaction and currency conversion fees. Responsify agrees to provide the Client a payment receipt for each payment made upon request. Client agrees to ensure that their required Payment Source (bank ACH payment or credit card information) is up to date with available funds or credit for payment collection, and agrees to pay for any fees incurred from failed or charged back payments.

Late Fees: Client agrees that in the event Client owes Responsify any payment installments or fees past (10) calendar days (Net-10), Client agrees to pay Responsify a fee of 15% annual percentage interest rate (APR), calculated as a daily compounding rate based on a calculated (360) day year. This fee is to be considered a “Late Fee”.

Payment on Agreements NOT including Service Period(s): Client agrees to establish a source of payment with Responsify, using the payment setup at the end of the agreement signing process, if not already previously established, either with a business credit card or bank account for ACH payments to be considered the Client’s “Payment Source”. Once this Payment Source is established, Client agrees to all payments or fees described in Agreement to be charged to the Payment Source set up by Client to Responsify. Client agrees to be charged monthly for services as specified in the Agreement. If Client wishes to pay using a business credit card, Client agrees to pay an additional 3% transaction fee. If Client is outside the United States, Client agrees to pay by credit card and pay a total of 5% in payment transaction and currency conversion fees. Responsify agrees to provide the Client a payment receipt for each payment made upon request. Client agrees to ensure that their required Payment Source (bank ACH payment or credit card information) is up to date with available funds or credit for payment collection, and agrees to pay for any fees incurred from failed or charged back payments.

Responsify’s Professional Discretion: Responsify shall endeavor to provide its best effort to include Client’s preferences in production of any and all Deliverables. Client agrees to allow Responsify to produce any and all Deliverables at its professional discretion due to the subjective nature of the work it produces, provided the Deliverable(s) abide by State and Federal laws. Client reserves the right to not publish and/or utilize any or all Deliverables produced by Responsify at Client’s discretion, and Responsify reserves the right to fully reproduce a Deliverable at its discretion. 

Change Orders: If a change of direction requires significant additional hours of service, Responsify will issue a Change Order document to Client to amend an existing Agreement, based on the new scope of work or additional services requested or needed. 

Copy and Image Legality: Responsify shall endeavor to make Client copy and images comply with the law. However, it shall be Client’s responsibility to submit all copy and images for legal review. Client shall also be responsible for final proofreading of all copy provided. Client agrees to indemnify, defend and hold harmless Responsify, including its owners, principals, employees and agents, from any and all losses, claims, damages, and liabilities, which may arise from the use of Deliverables, including but NOT limited to any and all instances of inclusion or omission.

Data Management: Responsify shall endeavor to assist Client keep its data clean and validated. However, Client shall be responsible for assigning contacts to email segmentation lists (for example if Client uses HubSpot as a CRM, setting contacts as ‘marketable’ or ‘non-marketable’), and backing up all Client data regularly to prevent any data loss that may occur as a result of any activities that include or do not include Responsify.

Client’s Marketing Performance: Client agrees that Responsify produces deliverables to help increase Client’s marketing performance. Client understands that the performance of their marketing depends on a multitude of factors both within and not within Responsify’s control. Client understands that marketing results vary based on Client’s product offerings, price points, value to audience, preexisting online reputation, Domain Authority strength (organic ranking power on Google), business and economic environments, level of competition, and/or other factors. 

Service Upgrades: Client reserves the right to upgrade services provided by Responsify, with service cost equal to or greater than service cost outlined in the Agreement, with a new signed Agreement to override existing related service agreement.

Ownership of Work Product: Responsify agrees that upon delivery of final Deliverables to Client, Deliverables hereunder shall be the sole property of Client and shall be subject to Client’s exclusive use, commercial or otherwise (“Work Product”). Responsify does not provide any digital source files of digital assets or deliverables it creates, unless Responsify chooses to do so at its own discretion. Client acknowledges that Responsify, its agents, employees, officers and subcontractors are granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to display the Work Product including non-confidential details of its creation as examples of their work in their respective public portfolios. Publication of the Work Product shall be within the sole and absolute discretion of Responsify provided no confidential information or trade secrets are contained therein.

Access to Services: Client agrees to provide Responsify full access to all online marketing services, tools, platforms, CRMs, CMS’, and other online marketing related accounts including, but not limited to: Google Analytics, HubSpot, WordPress, Drupal, Marketo, and Salesforce.

Contact us:

legal@responsify.com



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