This website (the “Site”) is owned and operated by Pop Cap Advertising LLC (“COMPANY,” “we” or “us”). By using the Site or purchasing from COMPANY you agree to be bound by these Terms of Service and to use the Site in accordance with these Terms of Service, our Privacy Policy and any additional terms and conditions that may apply to specific sections of the Site or to products and services available through the Site or from COMPANY. Accessing the Site, in any manner, whether automated or otherwise, constitutes use of the Site and your agreement to be bound by these Terms of Service.
We reserve the right to change these Terms of Service or to impose new conditions on use of the Site, from time to time, in which case we will post the revised Terms of Service on this website. By continuing to use the Site after we post any such changes, you accept the Terms of Service, as modified.

All purchases are subject to the following

Services.  The COMPANY agrees to perform such consulting, advisory and related services to and for the Client as may be reasonably requested from time to time by the Client (the “Services”) using any employee, Subcontractor, or agent of the COMPANY (the “Employees”).  The COMPANY may also agree to provide the Client with related services that may be requested from time to time by the Client. The COMPANY may engage the services of third party contractors, subcontractors or COMPANYs (each, a “Subcontractor”) in the performance of the Services at any time. The Client shall have no responsibility or obligation to any Subcontractor.

 

Term.  This Agreement shall commence upon the first billing and shall continue for 90 days (such period, as it may be extended or sooner terminated in accordance with the provisions of Section 4, being referred to as the “Consultation Period”).

 

Compensation.

Retainer Fee.  The Client shall pay to the COMPANY a retainer fee established as the initial charge, unless a deposit is first established, per month. Payment for the first month is due immediately. Every thirty days thereafter, the client agrees to automatic payment. If automatic payment fails, the COMPANY and the Client must mutually agree on an alternate method of payment. The retainer fee is non-refundable. After the first 90 days, the retainer fee is subject to increase.

 

Expenses.  The COMPANY shall not incur expenses without the prior written approval of the Client.

 

Advertising Fees. Clients will pay directly for any third party advertising fees associated with maintenance of online advertising services accounts, in accordance with the Client’s budget for the month or other amount requested by the Client. The COMPANY cannot guarantee meeting the Client’s monthly budget exactly but the COMPANY will not incur charges greater than $1,000 above or below the budget limit. By agreeing to this provision, the Client also agrees to abide by the terms of the online advertising services accounts provider(s).

 

Benefits.  The COMPANY and its Employees shall not be entitled to any benefits, coverages or privileges, including, without limitation, health insurance, social security, unemployment, medical or pension payments, made available to employees of the Client.

 

Termination.  This Agreement will auto-renew at the end of the Consultation Period for another month. Either party may terminate this agreement by providing the other party thirty (30) days’ advanced written notice. In the event of such termination, the Client shall be obligated to pay for all services rendered by the COMPANY over the final thirty (30) days whether utilized or not, and out-of-pocket expenses incurred up to the effective date of termination. The COMPANY reserves the right to terminate this agreement and/or cease all work on the Client’s behalf immediately for non-payment of fees or costs or if the Client breaches any material term of this agreement. Any pause in ongoing monthly work also requires thirty (30) days’ written notice.

 

Cooperation.  The COMPANY shall use its best efforts in the performance of its obligations under this Agreement but no specific outcome can be guaranteed. The Client shall provide such access to its information and property as may be reasonably required in order to permit the COMPANY to perform its obligations hereunder. The COMPANY shall cooperate with the Client’s personnel, shall not interfere with the conduct of the Client’s business and shall observe all rules, regulations and security requirements of the Client concerning the safety of persons and property.

 

Proprietary Information.

Proprietary Information.

The COMPANY acknowledges that its relationship with the Client is one of high trust and confidence and that in the course of its service to the Client it will have access to and contact with Proprietary Information. The COMPANY will not disclose any Proprietary Information other than as necessary for the performance of the Services without written approval by the Client, either during or after the Consultation Period, unless and until such Proprietary Information has become public knowledge without fault by the COMPANY.

For purposes of this Agreement, Proprietary Information shall mean, by way of illustration and not limitation, all information, whether or not in writing, whether or not patentable and whether or not copyrightable, of a private, secret or confidential nature, owned, possessed or used by the Client, concerning the Client’s business, business relationships or financial affairs, including, without limitation, any invention, formula, vendor information, customer information, apparatus, equipment, trade secret, process, research, report, technical or research data, clinical data, know-how, computer program, software, software documentation, hardware design, technology, product, processes, methods, techniques, formulas, compounds, projects, developments, marketing or business plan, forecast, unpublished financial statement, budget, license, price, cost, customer, supplier or personnel information or employee list that is communicated to, learned of, developed or otherwise acquired by the COMPANY in the course of its service as a COMPANY to the Client; provided that, such information is marked as “confidential” or bears a similar legend or is information that the COMPANY knows, or reasonably should have known, is proprietary information, confidential information or trade secrets.

The COMPANY’s obligations under this Section 6.1 shall not apply to any information that (i) is or becomes known to the general public under circumstances involving no breach by the COMPANY or others of the terms of this Section 6.1, (ii) is generally disclosed to third parties by the Client without restriction on such third parties, or (iii) is approved for release by written authorization of an officer of the Client.

The COMPANY agrees that all files, documents, letters, memoranda, reports, records, data sketches, drawings, models, laboratory notebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible material containing Proprietary Information, whether created by the COMPANY or others, which shall come into its custody or possession, shall be and are the exclusive property of the Client to be used by the COMPANY only in the performance of its duties for the Client and shall not be copied or removed from the Client’s premises except in the pursuit of the business of the Client.  All such materials or copies thereof and all tangible property of the Client in the custody or possession of the COMPANY shall be delivered to the Client, upon the earlier of (i) a request by the Client or (ii) the termination of this Agreement. After such delivery, the COMPANY shall not retain any such materials or copies thereof or any such tangible property.

The COMPANY agrees that its obligation not to disclose or to use information and materials of the types set forth in paragraphs (b) and (d) above, and its obligation to return materials and tangible property set forth in paragraph (d) above extends to such types of information, materials and tangible property of customers of the Client or suppliers to the Client or other third parties who may have disclosed or entrusted the same to the Client or to the COMPANY.

 

Ownership of Materials.  The Client retains ownership of all materials and other information provided by the Client in connection with this Agreement. The COMPANY retains full ownership and usage rights of all original works of authorship and creative services, such as website designs, logo designs, and videos, among others, produced by the COMPANY specifically for the Client. The COMPANY reserves the right to display all work within its portfolio or self-promotional materials, and to publicly announce the nature of the engagement.

 

 Non-Solicitation.  The Client agrees not to solicit employees of the COMPANY for part-time or full-time employment opportunities, either associated or not with this contract. Should the Client employ an employee of the COMPANY either during the term of this agreement or up to one year following the date of termination of this agreement, the Client agrees to pay the COMPANY a fee equal to one year of the employee’s ending gross annual salary.

 

Non-Disparagement. Except as required by law, each party covenants and agrees that, during the period of this agreement and for a two-­year period following the termination of this agreement, or until such time as the other party or any of its agents, subsidiaries, affiliates, successors, assigns, officers, employees, directors, attorneys or representatives has in any material respect breached this Agreement, neither it nor any of its agents, subsidiaries, affiliates, successors, assigns, officers, employees, directors, attorneys or representatives will in any way publicly disparage, call into disrepute, defame, slander or otherwise criticize the other party or the other party’s subsidiaries, affiliates, successors, assigns, officers, directors, employees, shareholders, agents, attorneys or representatives, or any of their products or services, in any manner that would damage in any material respect the business or reputation of such other party, its products or services or its subsidiaries, affiliates, successors, assigns, officers, directors, employees, shareholders, agents, attorneys or representatives. If either party breaches the commitments contained in this non­-disparagement agreement, that party will be liable for damages. Both parties agree that actual damages would be difficult to determine. However, based on what we presently know $10,000 is the minimum amount the parties would suffer from a disparaging remark. Furthermore, the parties agree that these damages are fair and reasonable and would not act as a penalty to the breaching party.

 

Other Agreements.  The COMPANY and its Employees hereby represent that, except as the COMPANY and its Employees have disclosed in writing to the Client, the COMPANY and its Employees are not bound by the terms of any agreement with any third party to refrain from using or disclosing any trade secret or confidential or proprietary information in the course of their consultancy with the Client, to refrain from competing, directly or indirectly, with the business of such third party or to refrain from soliciting employees, customers or suppliers of such third party.  The COMPANY and its Employees further represent that their performance of all the terms of this Agreement and the performance of the Services as a COMPANY of the Client do not and will not breach any agreement with any third party to which the COMPANY and/or its Employees are a party (including, without limitation, any nondisclosure or non-competition agreement), and that the COMPANY and its Employees will not disclose to the Client or induce the Client to use any confidential or proprietary information or material belonging to any current or previous employer or others.

 

Independent Contractor Status

The COMPANY and its Employees shall perform all services under this Agreement as “independent contractors” and not as employees or agents of the Client.  The COMPANY and its Employees are not authorized to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the Client or to bind the Client in any manner.

The COMPANY and its Employees shall have the right to control and determine the time, place, methods, manner and means of performing the Services.  In performing the Services, the amount of time devoted by the COMPANY and its Employees on any given day will be entirely within the COMPANY’s and its Employees’ control, and the Client will rely on the COMPANY and its Employees to put in the amount of time necessary to fulfill the requirements of this Agreement.  The COMPANY and its Employees will provide all equipment and supplies required to perform the Services.  The COMPANY and its Employees are not required to attend regular meetings at the Client.  However, upon reasonable notice, the COMPANY and its Employees shall meet with representatives of the Client at a location to be designated by the parties to this Agreement.

In the performance of the Services, the COMPANY and its Employees have the authority to control and direct the performance of the details of the Services, the Client being interested only in the results obtained. However, the Services contemplated by the Agreement must meet the Client’s standards and approval and shall be subject to the Client’s general right of inspection and supervision to secure their satisfactory completion.

The COMPANY and its Employees shall not use the Client’s trade names, trademarks, service names or servicemarks without the prior approval of the Client.

The COMPANY and its Employees shall be solely responsible for all state and federal income taxes, unemployment insurance and social security taxes in connection with this Agreement and for maintaining adequate workers’ compensation insurance coverage.

Non-Exclusivity.  The COMPANY and its Employees retain the right to contract with other companies or entities for their consulting services without restriction.  The Client retains a right to contract with other companies and/or individuals for consulting services without restriction.

 

Indemnification.  The Client will indemnify the COMPANY against any suit, claims or proceedings brought against the COMPANY, its officers, agents or employees as a result of work performed on behalf of the Client; provided that, the Client shall not indemnify the COMPANY in the event of the COMPANY’s gross negligence or intentional misconduct. The Client shall further indemnify, defend and hold harmless the COMPANY and its successors and assigns from and against any and all loss or damage resulting from any misrepresentation, or any non‑fulfillment of any representation, responsibility, covenant or agreement on its part, as well as any and all acts, suits, proceedings, demands, assessments, penalties, judgments of or against the COMPANY relating to or arising out of the activities of the Client and the Client shall pay reasonable attorneys’ fees, costs and expenses incident thereto.

 

Representations, Warranties and Covenants.

The COMPANY hereby represents, warrants and covenants that the Employees are and will be subject to binding, written agreements that (a) require Employees to protect Proprietary Information at least to the same extent as provided in Section 6 of this Agreement.

The COMPANY hereby covenants that it shall be liable for the acts and omissions of the Employees, including without limitation any breach of this Agreement or violation of law.

The COMPANY hereby represents, warrants and covenants that it and the Employees have the skills and experience necessary to perform the Services, that it and the Employees will perform said Services in a professional, competent and timely manner, that it has the power to enter into this Agreement and that its and the Employees’ performance hereunder will not infringe upon or violate the rights of any third party or violate any federal, state or municipal laws.

The COMPANY hereby covenants that it will not create, distribute, or otherwise use materials in the provision of the Services that are reasonably believed to cause libel, slander, or other injurious statements.

The Client hereby covenants that it will not provide materials to the COMPANY for use in the provision of the Services that are reasonably believed to cause libel, slander, or other injurious statements.

The Client hereby covenants that it will not provide materials to the COMPANY for use in the provision of the Services that are reasonably believed to infringe on any third party intellectual property rights.

 

Notices.  All notices required or permitted under this Agreement shall be in writing and shall be deemed effective upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party at the address shown above, or at such other address or addresses as either party shall designate to the other in accordance with this Section 15.

 

 

Pronouns.  Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns and pronouns shall include the plural, and vice versa.

 

Entire Agreement.  This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter of this Agreement.

 

Amendment.  This Agreement may be amended or modified only by a written instrument executed by both the Client and the COMPANY.

 

Non-Assignability of Contract.  The COMPANY shall not have the right to assign any of its rights or delegate any of its duties without the express written consent of the Client.  Any non-consented-to assignment or delegation, whether express or implied or by operation of law, shall be void and shall constitute a breach and a default by the COMPANY.

 

Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction.

 

Successors and Assigns.  This Agreement shall be binding upon, and inure to the benefit of, both parties and their respective successors and assigns, including any corporation with which, or into which, the Client may be merged or which may succeed to its assets or business, provided, however, that the obligations of the COMPANY are personal and shall not be assigned by COMPANY.

 

Interpretation.  If any restriction set forth in Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.

 

Survival.  Sections 4 through 22 shall survive the expiration or termination of this Agreement.

 

Miscellaneous.

No delay or omission by the COMPANY in exercising any right under this Agreement shall operate as a waiver of that or any other right.  A waiver or consent given by the COMPANY on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.

 

The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.

 

In the event that any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.

 

You hereby ratify your understanding that all payments are non-refundable and waive any rights to charge-back your purchase with your credit card processor.

 

You acknowledge that there are no guarantees to advertising – and therefore the COMPANY cannot guarantee results. Furthermore, you understand that all potential numbers are for illustrative purposes only.