WHEREAS, the Cardenal Group d/b/a Roof Marketing Pros (the “Agency”) is engaged in the business of providing digital web-based marketing services for clients in various locations across the United States (the “Services” of the Agency);
WHEREAS, you, the “Client” desire to engage the Agency to perform the Services on the Client’s behalf, for the benefit of the Client, as more specifically set forth on the “Scope of Work” delivered by the Agency and accepted by the Client, which Scope of Work is incorporated by reference as if fully set forth herein;
WHEREAS, the Parties wish to define the terms of their mutual understandings and obligations with respect to the Scope of Work, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises of the Parties and of the mutual benefits to be gained by the performance thereof, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services. The Agency shall perform the Services in accordance with the Scope of Work. Subject to the disclaimers set forth on Schedule A attached hereto and incorporated herein by reference, the Agency agrees to devote sufficient time, attention, and energy necessary to fulfill the terms set forth in the Scope of Work. The Agency may provide such other Services as the Client may request and the Agency may agree upon from time to time; provided, however, that the Client and the Agency must make and enter into a separate Scope of Work for any such other Services.
2. Term and Renewal. The term of this Agreement shall commence upon the date of Client’s acceptance of the Scope of Work (hereinafter, the “Effective Date”) and shall continue in full force and effect until completion of the Services set forth on the Scope of Work (the “Initial Term”), which Initial Term shall stand renewed for successive additional terms of one (1) month (each a “Renewal Term”), unless either Party shall, no less than thirty (30) days prior to the final day of the Initial Term or any Renewal Term, as the case may be, by written notice to the other Party, terminate same. Each Party hereby acknowledges and agrees that failure of either Party to serve such written notice on the other Party shall automatically extend the term of this Agreement for an additional Renewal Term and shall obligate the Parties to all the terms and conditions set forth herein for such Renewal Term. If a client wishes to pause services they have to do 1 offboarding call before pausing.
3. Payment. The Client shall pay to the Agency as compensation for the Agency’s performance of the Services, the amounts and at such frequencies shown on the Scope of Work. The Client acknowledges that the Agency may require payment prior to commencement of the performances contemplated by this Agreement. In the event that this Agreement is terminated prior to fulfillment of the Scope of Work, but where Services have been partially performed, the Client agrees to compensate the Agency for the reasonable cost of such Services, as determined in the sole and absolute discretion of the Agency.
4. Lead Guarantee Program. The Agency may from time to time make certain guarantees with respect to the number of leads and/or appointments generated on Client’s behalf during the Initial Term (the “Lead Guarantee”), which Lead Guarantee shall identify the amounts of such leads and/or appointments on the Scope of Work. Client hereby acknowledges and understands that the Agency’s fulfillment of any such Lead Guarantee shall require a reasonable “ramp up” period of approximately sixty (60) days to develop necessary campaign strategies and build momentum towards such Lead Guarantee. Notwithstanding, the Agency hereby covenants and agrees that should the Agency fail to meet the requirements of the Lead Guarantee by the end of the Initial Term, the Agency shall continue to provide the Services for one (1) Renewal Term at no cost to the Client. By way of example and not in limitation thereof, if the Agency guarantees to generate fifty (50) leads during the Initial Term but only generates forty-nine (49) leads during such period, the Agency shall continue providing the Services for one (1) additional Renewal Term at no cost to Client.
5. Default. If either Party defaults on any of its obligations under this Agreement, the non-defaulting Party shall give written notice to the defaulting Party of such default. The defaulting Party will have three (3) business days to cure the noticed default. If the defaulting Party does not cure the noticed default, a non-defaulting Party may claim the Agreement is in default and seek available remedies herein.
6. Remedies; Late Penalties. Upon a Party having failed to cure its default following delivery of proper notice of such default in accordance with Section 5, the non-defaulting Party shall have the right to cancel this Agreement, upon which the Parties shall attempt to negotiate a settlement of any unpaid fees. In the event that the Parties fail to reach such a settlement, the Parties agree to attempt to resolve such dispute through confidential, non-binding mediation. If the Parties fail to reach a negotiated settlement through mediation, the Parties agree to confidential, binding arbitration under the rules of the American Arbitration Association as a final resolution. Any and all amounts remaining outstanding after the due date and applicable cure period set forth in Section 5 shall accrue interest, from the date of completion of the Scope of Work or the date of invoice, whichever occurs earlier, at a rate of five percent (5%) per annum, compounding annually, until paid in full. In the event the Agency engages the services of an attorney for collection of unpaid fees, the Client agrees to pay such attorneys’ fees, as well as any court costs incurred in the collection process.
7. Limitation of Damages. Neither Party shall be liable for, nor shall any measure of damages include, any indirect, incidental, special, exemplary, punitive or consequential damages or penalties for loss of income, value, profits, savings, or any other loss arising out of or relating to its performance or failure to perform under this Agreement, even if the Party against whom liability is sought to be imposed has been advised of the possibility of such damages. The Client agrees to make full payment of all amounts invoiced by Agency before bringing a complaint for damages. The Client may not set-off amounts owed.
8. Compliance with Laws. Throughout the Initial Term or any Renewal Term of this Agreement, both Client and Agency shall comply with all applicable laws, rules, regulations, orders and directives of the United States, any state, local municipality, and foreign country, including without limitation the Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227) and all corresponding regulations (the “TCPA”). Client acknowledges and understands that the Agency may, on the Company’s behalf, use short message service (SMS), automated phone calls, or other forms of communication permitted by the TCPA in fulfilment of its obligations under this Agreement; provided, however, that Company expressly agrees to obtain any and all consent and/or notice requirements contemplated by the TCPA, and hereby assumes any and all risk and liability relating to, or arising from the Company’s violation of the TCPA.
9. Indemnification. The Client agrees to defend, indemnify, and hold harmless the Agency, its affiliates, shareholders, officers, directors, employees, agents, successors and permitted assigns from any and all losses, damages, liabilities, deficiencies, actions, judgements, interests, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, in connection with any third-party claim, suit, action or proceeding arising out of or resulting solely from the action or inaction of the Client, its affiliates, shareholders, officers, directors, employees, agents, successors and permitted assigns, or any violation of law, including without limitation any violation of the TCPA, resulting solely from the action or inaction of the Client, its affiliates, shareholders, officers, directors, employees, agents, successors and permitted assigns.
10. Confidentiality. The Client acknowledges and agrees that the Services provided by the Agency are of a special, unique, and extraordinary character, and that the Agency has expended considerable efforts in developing proprietary formulas, data, and search engine marketing (“SEM”) strategies in furtherance of the Services contemplated by this Agreement. The Client understands that the Agency shall not provide the Client access to the Agency’s SEM or any information relating to any electronic, internet, Google, or Facebook advertising campaigns, and hereby expressly agrees that it will not manipulate, copy, duplicate, or otherwise alter the Agency’s SEM during or after any Initial Term or any Renewal Term.
11. Mutual Non-Disparagement. Subject to applicable law, each Party covenants and agrees that neither it nor any of its respective agents, subsidiaries, affiliates, successors, assigns, officers, key employees or directors, will in any way publicly disparage, call into disrepute, defame, slander or otherwise criticize the other Party, or such other Party’s subsidiaries, affiliates, successors, assigns, officers (including any current officer of a Party or such Party’s subsidiaries who no longer serves in such capacity following the execution of this Agreement), directors (including any current director of a Party or such Party’s subsidiaries who no longer serves in such capacity following the execution of this Agreement), employees, shareholders, agents, attorneys or representatives, or any of their products or services, in any manner that would damage the business or reputation of such other parties, their products or services or their subsidiaries, affiliates, successors, assigns, officers (or former officers), directors (or former directors), employees, shareholders, agents, attorneys or representatives.
12. Severability. If any term or part of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, the validity of the remaining part of such term or the validity of any other term of this Agreement shall not in any way be affected.
13. Relationship of the Parties. The Agency will provide the Services to the Client on a non-exclusive basis as an independent contractor. Nothing in this Agreement shall be construed as creating an employment, partnership, or joint venture relationship or as preventing the Agency from providing Services to other parties.
14. Binding Agreement. This Agreement shall bind and inure to the benefit of the Parties hereto and their respective heirs, legal representatives, successors and assigns.
15. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one Agreement, and the signatures of any Party to any counterpart shall be deemed to be a signature to, and may be appended to, any other counterpart.
16. Entire Agreement. This Agreement, along with the Exhibits attached hereto and any documents or instruments delivered in accordance herewith, constitutes the entire agreement of the Parties hereto regarding the subject matter hereof and supersedes all prior agreements, written or oral, regarding the subject matter hereof.
17. Amendment. This Agreement may not be modified, altered or rescinded except by written agreement signed by the Parties hereto.
18. Choice of Law, Jurisdiction and Venue. This Agreement and the rights of the Parties hereunder shall be interpreted in accordance with the internal laws of the State of Florida, as if it were made and performed entirely in Florida by persons domiciled therein, and the Parties consent to the jurisdiction and venue of Miami-Dade County courts for the resolution of any civil action relating to this Agreement.
19. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if (i) delivered by hand, (ii) mailed by registered or certified mail, postage prepaid, return receipt requested, (iii) deposited with a nationally recognized courier, such as Federal Express, for next business day delivery, or (iv) communicated by facsimile or email to the Parties at the following addresses (or such other addresses for a Party as shall be specified by like notice), and shall be deemed given on the date on which so hand delivered, or the next business day following deposit with such courier or sending by facsimile or email, or on the third business day following the date on which so mailed, if deposited in a regularly-maintained receptacle for United States Mail:
If to the Agency, addressed to:
The Cardenal Group LLC d/b/a Roofing Marketing Pros
Attn: Mauricio Cardenal
1688 Meridian Ave Unit 580
Miami Beach, FL 33139
If to the Client, address to the address set forth on the Scope of Work.
20. Force Majeure In no event shall the Agency be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, pandemics, epidemics, acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.