RSM Marketing Terms & Conditions

[DBA: Hydraulic Studio, 360ideas, 360Wichita, 360KC, Air Capital Drone Company, The Unravel Corporation]

Corporate Office Address
10000 Marshall Dr, Lenexa, KS 66215

Corporate Billing Address
15621 West 87th St Pkwy, Lenexa, KS 66219

(913) 735-3050

Hours:

Our office hours are from 8:00am to 5:00pm CST M-F. Please call (913) 347-4431 during business hours to schedule an appointment.

For technical support, please email [email protected].

Agreement:

By signing to accept the fees in your contract and/or proposal, you are making an agreement with RSM Marketing (RSM, we, or us) to employ RSM to design, build, purchase, host, consult on and/or maintain any promotional page, website, print project, application, domains, presentation, photography project, videography, copywriting project, or other marketing services on this document and any attached proposals/forms.

Ownership of RSM Materials:

This provision excludes Website or printed graphics, page layout and copy provided or produced in conjunction with full-service web site design, identity packages and print projects. Ibex CMS is a proprietary software product belonging exclusively to RSM and may be leased on an annual basis to client except in the instance that RSM provides explicit written consent otherwise. Web site design projects not paid for in full will remain property of RSM. All material developed by RSM including but not limited to virtual tours, images, still photography, graphics, page layouts, links, and advertising copy shall remain the sole property of RSM and shall not be reproduced or republished in any form without the expressed written consent of RSM. This provision shall survive the termination of this agreement. RSM shall have the right to use such material without limitation in the promotional and other legitimate business purposes of RSM and any subsidiaries or affiliates. We will not knowingly use copyrighted materials of any kind, unless you or your company holds the copyright or has obtained expressed permission in writing to include such material in your advertising. RSM does not accept responsibility for any usage of copyrighted materials provided by you. You warrant and represent that no materials provided by you to RSM will infringe the rights of, or damage any third party. Further, we reserve the right to take any action required to comply with applicable intellectual property law including but not limited to the Digital Millennium Copyright Act. RSM retains unlimited rights to use work produced for you to promote RSM in new business efforts, respecting other clauses herein.

Subscriptions:

Outsourced Marketing Department, marketing technology subscriptions and ongoing maintenance work are billed a month in advance for the work committed.

For any subscriptions, marketing technologies, or scoped projects paid or due to RSM, you are obligated to pay for sixty (60) days after termination or “kill” notice is given. Some technology subscriptions may have a minimum term of one year which will still be honored.

In cases where RSM has provided a great deal of work disproportionately in excess of the monthly amount of the subscription or in the scoped project, RSM will total all time, materials and other expenses incurred to date and reconcile that outstanding balance with your payments made. Any overage due RSM will be billed to you. If you fail to pay this amount, the entire subscription/scoped project balance per this or any other Agreement with RSM will be due in full.

Promotional Pages:

(IF APPLICABLE) RSM will design, build, host and maintain advertising for your lawful business within site/servers for a varying period of up to one year beginning thirty (30) days after initial contract signing. You have the option to extend this agreement by paying a renewal fee and upon terms agreeable to both parties, to be negotiated no later than the expiration of this contract or any extension thereof. Payment of renewal charges by you for any recurring service shall constitute acceptance of this agreement as to such renewal period.

HOSTED SERVICES Disclaimer (to the extent permitted by applicable law): RSM AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF ANY SERVICES OR ANY CONTENT. RSM AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARD-WARE, SOFTWARE, SYSTEM, OR DATA; (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH OUR SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MER-CHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY US AND OUR LICENSORS.

RSM’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. RSM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES of RSM, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Support Requests

All support requests submitted through RSM’s HelpDesk at [email protected] are subject to an hourly charge. An additional $75 Rush Support Fee is applied for requests marked as rush. Following the completion of the request, charges will accrue to your next invoice or a new invoice will be sent you agree to pay those charges in full. At the discretion of RSM Marketing, a comprehensive time log can be provided to the client upon request.

All support requests have a minimum time billing of 30min. Our standard rate is $195/hour. If your request will take more than 3 estimated hours, our support team will contact you before starting the work.

Payment:

Paperless Payment System
RSM Marketing utilizes a paperless and automated invoicing and payment system. RSM cannot start services without your payment method on file. Please pay by electronic means: ACH or credit card. Client authorizes RSM to use client’s preferred payment method to satisfy any service invoice and also authorizes RSM to use any previous payment method as a payment alternative when needed. This includes the processing of electronic checks, ACH and credit and debit cards.

Marketing Services Subscriptions, Outsourced Marketing Department, OMD

Initial month of quoted marketing services
Each month of marketing services, during the term of this agreement, will be invoiced near the 1st of each month and payment collected within 3 business days of each invoice.

Subscriptions represent recurring billing plans where work is provided in advance of payment or otherwise unevenly throughout the billing period. Should client cancel services before end of the term in this agreement, hours provided will be tallied at standard hourly rates with client payments received to date being subtracted from the amount due. The remainder will be billed to client, or the remainder of the contract, whichever amount matches the level of work provided.

All subscriptions continue on a month-to-month basis at the end of the indicated term, unless canceled with 60 days advance notice after the initial term.

Video, Website Design, Web Development
* 50% of the Project Quote is due before project work is started
* The balance of all fees is due after final approval is received and before work is delivered

Media, Ad Spend
Client’s desired monthly advertising budget used for Digital Advertising Campaigns managed by RSM Marketing will be funded at the beginning of each month via RSM Marketing’s payment profile and subsequently charged to the client via auto-pay, utilizing client’s payment method on file. If the budget is increased during the month, that additional spend will be invoiced in advance and then funded to the campaign. If the digital budget is decreased in the course of the month, the amount decreased will be credited to the client’s next month’s invoice. Any media budgets for the month will be billed in advance and due immediately, as RSM is fronting media expenses.

Past Due Balances
All payments are applied in the following order (where applicable):
1. Late fees
2. Past due balance(s) (oldest first)
3. RSM fees
4. Media Spend(s)

Non-payment
Failure to make payment for two (2) consecutive months may result in suspension of some or all services, even those unrelated to outstanding balance, which may include, but is not limited to, website hosting, helpdesk access and/or ad placement, until client’s balance is made current.

Client agrees that if RSM has a means of payment on file and has not received payment two weeks after the due date, RSM may use any one of those existing means and submit the payment due on your behalf. This includes the processing of checks (all paper checks are processed electronically), electronic checks, ACH and credit card.

Billing Questions
For any billing or accounting questions, please contact RSM at [email protected].

Other Payment Terms
The down payment and remaining balance due for annual promotion, design, photography or consulting services and hosting fees are to be paid as due, for services to be rendered. RSM shall be entitled to unilaterally terminate this Agreement and not provide the service applied for until agreed upon up-front payments are made. RSM shall be entitled to unilaterally terminate this Agreement and not provide the service applied for if payment is fraudulent or delinquent. RSM shall not be obligated to provide refunds or credits for any terminated or cancelled services for any reason resulting from your non-performance. If this agreement is terminated due to fraudulent or delinquent payment, you shall be liable for payment(s) still due for work performed by RSM. You assume responsibility for all collection and legal fees necessitated by default in payment. Down payment and payment terms are articulated on the reverse side of this agreement.

You have the right and responsibility to review all RSM invoices and question any items billed. You have 30 days from date of invoice to contact RSM to discuss, dispute and resolve any billing issues. After such time, both you and RSM agree that billed invoices fairly and accurately reﬂect the work done by RSM along with all costs incurred by RSM, and you no longer have the opportunity to dispute charges.

Paper Checks Processing Authorization
You authorize RSM to process all checks electronically when your check is received by us, but not before your check is received.

Credit Card Processing Fee Authorizations
RSM reserves the right to add a credit card processing fee of 3.0% for subscription or service fee payments.

Traditional media, Sirius XM media, Spotify media, SlingTV media, Pandora media, programmatic media and general online media buys to include Google, Facebook and others wherein client pays hard media costs by credit card will incur up to a 5% RSM processing fee which can be invoiced or debited from the paid media amount to account for credit card processing fees incurred by RSM.

Late Fees:

Accounts thirty (30) days past due will be assessed a 1.5% ﬁnance charge assessed starting on the day after your invoice due date and continuing in all succeeding months the account is delinquent. By signing this agreement you authorize RSM to charge past due payments for services to the provided credit card information at our discretion. Accounts delinquent ninety (90) or more shall be reported to a credit agency, may be subject to legal proceedings and service with RSM may be suspended.

Any late fees, interest or other surcharges incurred by RSM for completed work on your behalf or which you have not paid will be passed on to you by RSM.

Arrears Clause:

Should your accounts receivable due age past thirty (30) days from the invoice due date, RSM reserves the right to stop all work and cancel all media schedules, production and other workﬂow until your account becomes current.

Cancellation:

For any work that is postponed or cancelled at your request, RSM shall have the right to demand full payment, or to bill pro rata for the work completed through the date of the cancellation or postponement request by you. Full or pro rata payment is due within 30 days of your request to stop or postpone work. Down payments on purchases made by us for you are non-refundable. You agree that you or your successors, acquiring parties or transferees will continue to make payments for our services as this agreement identiﬁes in full regardless of the closing or sale of your business.

Domain name transfer requests as a result of termination of services by either party will only be completed upon client payment of any outstanding balances in full, a domain transfer fee of $75.00 and domain renewal fee of $35.00 per domain name. Additionally domain name fees associated with domain names not cancelled 60 days prior to renewal date will be due in full for year renewed.

Vendors:

In cases where RSM’s vendors provide work for you as ordered by RSM and approved, either verbally or in writing by you, RSM reserves the right to withhold your remittances for these vendor expenses until you pay RSM for its work. Any fees your remit will ﬁrst be allocated to RSM fees and then to production and media fees, even if otherwise designated by you.

Storage:

Audiovisual products such as videos, photography and audio ﬁles – raw and ﬁnished – will be stored by RSM at no cost to you in the year they are produced. In subsequent years charges to store these ﬁles will be billed. You will have the opportunity to take possession of said ﬁles en lieu of paying storage fees.

Performance:

RSM makes no performance representations nor guarantees of anticipated, desired or targeted results. RSM’s work is non-re-course.

Intellectual Property Provisions:

Assignment of Rights

IP 1. RIGHTS IN THE FINAL DELIVERABLES
IP 1.1 Final Works. Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, RSM assigns to Client all of RSM’s Copyrights in and to the Final Works, including Trademarks. RSM shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment, and Client shall reimburse RSM for RSM’s reasonable time and out-of-pocket expenses in connection therewith.

IP 1.2 Trademarks. Client shall have sole responsibility for ensuring that Trademarks do not infringe the rights of third parties, and Client shall indemnify, save and hold harmless RSM from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging trademark infringement, or arising out of Client’s failure to obtain trademark clearance or permissions, for use of Trademarks.

IP 1.3 Client Content. Client Content, including pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all trademark, trade secrets, patents, Copyrights, and other rights in connection therewith. Client hereby grants to RSM a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with RSM’s performance of the Services and promotional uses of the Deliverables as authorized in this Agreement.

IP 1.4 Third Party Materials. Intellectual property rights in Third Party Materials shall be owned by the respective third parties. RSM shall inform Client of Third Party Materials to be procured by RSM that Client may need to license at Client’s own expense, and unless otherwise arranged by Client, RSM shall obtain a license for Client to use the Third Party Materials consistent with the usage rights granted herein. Client shall indemnify, save and hold harmless RSM from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Works at Client’s request.

IP 2. RIGHTS RESERVED TO RSM

IP 2.1 Preliminary Works/Working Files. RSM retains all proprietary rights, including property ownership, intellectual

property rights and Copyrights, in and to all Preliminary Works and Working Files, and Client shall return to RSM all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.

IP 2.2 Original Artwork. RSM retains property ownership in any original artwork comprising Final Works, including all rights to display or sell such artwork. Client shall return all original artwork to RSM within thirty (30) days of completion of the Services.

IP 2.3 RSM Tools. RSM Tools and all intellectual property rights therein, including Copyrights, shall be owned solely by RSM. RSM hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s publisher, web hosting or Internet service providers), perpetual, worldwide license to use the RSM Tools solely with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any RSM Tools comprising software or technology.

IP 2.4 RSM Digital Advertising Methodologies, Structures and Components. RSM retains all digital advertising intellectual rights within our digital advertising services, including, but not limited to digital advertising methodologies, digital advertising campaign structures and digital advertising campaign components, and shall be owned solely by RSM. RSM grants no rights to Client to access, view, copy or use the RSM paid digital advertising intellectual property. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any RSM paid digital advertising intellectual property.

D 1. DEFINITIONS

As used herein and throughout this Agreement:

D 1.1 Client Content means all materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.

D 1.2 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.

D 1.3 RSM Tools means all design tools developed and/or utilized by RSM in performing the Services, including without limitation pre-existing and newly developed software including source code, web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

D 1.4 Deliverables means the services and work product specified in the Proposal to be delivered by RSM to Client, in the form and media specified in the Proposal.

D 1.5 Final Works means all creative content developed by RSM, or commissioned by RSM, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, modifications to Client Content, and RSM’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.

D 1.6 Final Deliverables means the final versions of Deliverables provided by RSM and accepted by Client.

D 1.7 Preliminary Works means all creative content including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by RSM and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Works.

D 1.8 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

D 1.9 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.

D 1.10 Working Files means all underlying work products and digital files utilized by RSM to create the Preliminary Works and Final Works other than the format comprising the Final Deliverables.

Compliance with Law:

In the event that RSM may at any time in good faith believe or suspect that our services are being utilized for unauthorized purposes of any kind (including but not limited to: pornography, vulgarity, hate, hacking, spamming, or any other illegal activities) we may immediately discontinue such services to you without notice, refund, credit, or liability of any kind. Further, you warrant and represent that you will not use RSM services for any unlawful purpose, including but not limited to the unlawful export of anything, doing business with any federally non-permitted or debarred third party or state, or any violation of any other applicable law.

Indemnification:

You agree to indemnify and hold RSM, its licensors and each such party’s parent organizations, subsidiaries, afﬁliates, ofﬁcers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of our services or your contributions infringes the rights of, or has caused harm to, you or to any third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your users and customers of these terms and conditions. (iv) a claim arising from non-compliance with Corporate Franchisor, Licensor or governing body such as the Federal Trade Commission.

Changes in Terms of Agreement:

RSM reserves the right to make changes to the terms and conditions of this agreement upon thirty days’ notice to you, advising of the change and the effective date thereof. Your use of our services following the effective date of such change shall constitute your acceptance of such changes.

Conditions and Governing Law:

The application, quote, and the Agreement constitute a legal and binding agreement between you and RSM and shall be interpreted according to the laws of the State of Kansas. Any legal action with regards to this agreement shall be brought only in Sedgwick County, in the State or Federal Court of appropriate jurisdiction lying within the State of Kansas, county of Sedgwick, City of Wichita. This agreement does not extend rights to any other person or entity. You are responsible for payment of all fees associated with this agreement plus any legal, attorney, or collection fees that may be accrued because of your failure to pay as agreed. These fees are non-transferable and are owed regardless of your business/ﬁnancial status unless otherwise agreed in writing by you and us.