Terms and Conditions
These Terms and Conditions (“Terms”) together with the accompanying proposal (“Proposal,” collectively the “Agreement”) apply to the purchase and sale of products and services by Montclair Digital Group, LLC (“Company”) to the client (“Client”). These Terms & Conditions are subject to change by Company without prior written notice at any time, in Company’s sole discretion. Any changes to the Terms & Conditions will be in effect as of the “Last Updated Date” referenced on the Website. Client’s continued use of this website or purchase of products or services after the “Last Updated Date” will constitute your acceptance of and agreement to such changes.
Company Obligations.
Services. Company shall provide to Client the services and deliverables (the “Services”) set forth in the Proposal submitted by Company and accepted by Client.
Performance Dates. Company shall use reasonable efforts to meet any performance dates specified in the Proposal, and any such dates shall be estimates only.
Compliance with Laws and Industry Standards. Company shall at all times comply with all applicable federal, state, and local laws, ordinances, regulations, and orders that are applicable to the operation of its business and to this Agreement and its performance hereunder. Company shall comply with digital marketing industry standards, guidelines, and best practices in providing the Services.
No Exclusivity. Company retains the right to perform the same or similar type of services for third parties in Client's industry during the Term of this Agreement.
Client Obligations.
Client Materials. Client shall cooperate with Company in all matters relating to the Services and provide copies of or access to Client’s information, documents, samples, products, or other material (collectively, “Client Materials”) as Company may reasonably request in order to carry out the Services in a timely manner and ensure that they are complete and accurate in all material respects. Client and its licensors are and shall remain the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including any and all trade secrets, trademarks, domain names, and original works of authorship and related copyrights pursuant to applicable law.
Client Approvals. Client shall respond promptly to Company’s request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform the Services.
Client Content. Client is solely and exclusively responsible for the substantive content of any website, email, blog post, article, newsletter, social media post, or other information disseminated through Client’s digital footprint (collectively, “Client Content”).
Compliance with Laws. Client shall obtain and maintain all necessary licenses and comply with all applicable federal, state, and local laws, ordinances, regulations, and orders that are applicable to the operation of its business and to this Agreement.
Client’s Acts or Omissions. If Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client to the extent arising directly or indirectly from such prevention or delay.
Intellectual Property Rights; Ownership.
License to Certain Client Intellectual Property.
Subject to and in accordance with this Agreement, Client grants Company and its subcontractors a limited, non-exclusive, royalty-free, worldwide license to use Client’s intellectual property, including copyrights, trademarks, service marks, trade secrets, know-how, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Client Intellectual Property”) to the extent necessary to provide the Services to Client.
Client grants no other right or license to any Client Intellectual Property to Company by implication, estoppel, or otherwise. Company acknowledges that Client owns all right, title, and interest in, to, and under the Client’s Intellectual Property and that Company shall not acquire any proprietary rights therein.
Ownership of and License to Deliverables.
Except as set forth in 4.2(c), Client is and shall be, the sole and exclusive owner of all right, title, and interest in and to all documents, work product, and other materials that are delivered to Client hereunder by or on behalf of Company in connection with the Proposal (collectively, the “Deliverables”). Company acknowledges that with respect to any Client copyrights in any Deliverables that may qualify as "work made for hire,” Client shall own the copyrights in such Deliverables.
Upon the reasonable request of Client, Company shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any Deliverables.
In the course of providing the Services, Company will be using certain pre-existing materials consisting of documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, and specifications, in each case developed or acquired by Company independently of this Agreement (collectively, the “Pre-Existing Materials”). Company and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property therein. Company hereby grants Client a limited, royalty-free, non-transferable, non-sublicensable, worldwide license to use, perform, display, execute, reproduce, distribute, or transmit, any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Company.
In the course of providing the Services and Deliverables, Company will be using certain third-party materials consisting of documents, data, content, or specifications of third parties, and components or software, including open-source software that are not proprietary to Company (collectively, the “Third-Party Materials”), Client shall have a limited, royalty-free, non-transferable, non-sublicensable, worldwide license to use the Third-Party Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client's receipt or use of the Deliverables. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Client or any third party, any Intellectual Property rights in the Third-Party Materials, by implication, waiver, or otherwise.
Fees and Expenses.
In consideration of the provision of the Services and Deliverables by Company and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the Proposal. Client agrees to reimburse Company for all pre-approved, reasonable travel and out-of-pocket expenses incurred by Company in connection with the performance of the Services.
Client shall pay all invoiced amounts due to Company upon receipt of Company’s invoice. For subscription services, Client agrees to recurring charges in accordance with the terms of the Proposal. Client shall make all payments in US dollars by credit card or other method of payment agreed upon by the Parties.
In the event payments are not received by Company within 30 days after becoming due, Company may (a) charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (b) suspend performance for all Services until payment has been made in full.
Taxes. Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.
Limited Warranty. Company warrants that it shall perform the Services (a) using personnel of required skill, experience, and qualifications and in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services. COMPANY (a) MAKES NO WARRANTIES EXCEPT FOR THOSE SET OUT ABOVE; AND (b) DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRES OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Company’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of the limited warranty set out in this Section shall be reperformance of the affected Services or Deliverables. If Company cannot reperform the Services in compliance with the warranty set forth above within a reasonable time after Client’s written notice of such breach, Client may, at its option, terminate this Agreement by serving written notice of termination in accordance with the terms of this Agreement.
Indemnification. Client shall defend, indemnify, and hold harmless Company, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or resulting from any third-party claim alleging (a) Client’s negligence, fraud, recklessness, or willful misconduct of Client in connection with the performance of its obligations under this Agreement or Client Materials or Client Content contained in the Deliverables; or (b) that any Client Materials, Client Content, or Client Intellectual Property or Company’s receipt or use thereof in accordance with the terms of this Agreement infringes any Intellectual Property of a third party. Indemnified Party shall give Client (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Client from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation in the defense of such claim. Client shall have the right to control the defense and settlement of any such claim; provided, however, that the Client shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO LIABILITY FOR INDEMNIFICATION SET FORTH IN SECTION 6 OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, EACH PARTY’S 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, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Confidentiality. From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 8 by the Receiving Party; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable law. The Receiving Party shall, for one (1) year from disclosure of such Confidential Information: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party’s representatives or subcontractors who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 8 caused by any of its representatives or subcontractors.
Term and Termination.
Term. The term of this Agreement commences on the date of Client’s acceptance of the Proposal (the “Effective Date”) until completion of the Services or as otherwise provided in the Proposal.
Termination. Except as otherwise provided in the Proposal, either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within forty-five (45) days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Notwithstanding anything to the contrary in this section, Company may terminate this Agreement upon written notice if Client fails to pay any amount when due hereunder and such failure continues for thirty (30) days after Company’s written notice to Client of nonpayment.
Miscellaneous.
Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by each party.
Entire Agreement. The accompanying Proposal and these Terms & Conditions comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms & Conditions and the Proposal, the Proposal shall govern unless stated otherwise in the Proposal. These Terms & Conditions prevail over any of Client’s general terms and conditions regardless of whether or when Client has submitted a request for proposal, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms & Conditions.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Proposal or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by (i) email or (ii) a nationally recognized overnight courier or certified or registered mail, in each case with a copy by email.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Survival. Provisions of the Agreement, which by their nature should apply beyond the Term, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Fees and Expenses, Indemnification, Limitation of Liability, Confidentiality, Term and Termination, Governing Law, Forum, and Survival.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Waiver. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Assignment. Client shall not assign this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction).
Forum. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New Jersey, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Last Updated Date: March 31, 2024