SUBSCRIPTION PACKAGE TERMS & CONDITIONS

OVERVIEW

These Terms of Service (“Agreement”) is a legally binding agreement between the user or subscriber of the Services (“User” or “you”) and Colibri Digital Marketing, a Benefit Corporation with its principal place of business at 85927 Almaden Ln. Oakland, CA 94611-2233, USA (“Colibri Digital Marketing,” “Colibri,” “we” or “us”). 

By registering for the Services or by accessing or using the Services, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of a business or other legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms “Client,” “Clients,” “User,” “Users,”  “you” or “your” shall refer to such entity. If you do not have such authority or do not agree with the terms of this Agreement, you must not accept this Agreement and may not use the Services. You acknowledge that this Agreement is a contract between you and Colibri Digital Marketing, even though it is electronic and is not physically signed by you, and it governs your use of the Services.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT REGISTER FOR OR USE THE SERVICES.

SCOPE OF WORK

On a monthly basis, the user will be able to make a certain amount of requests at a time to Colibri, which will be limited to the following deliverables: 

Social Media

• Graphic social media  posts
• Organic social media posts [footage sent by client]
• Copy creation
• Social media templates
• Audit + Profile Recommendations
• Hashtag Research

SEO

• Blog post creation
• Blog post optimization [content sent by client]
• SEO Audit
• Editorial Calendar
• Keyword Research
• Landing page content creation
• Landing page SEO optimizations

Email Marketing

• Newsletter content creation
• Newsletter template design
• Automation content [up to 5 emails]

Advertising

• Ads copy
• Ads graphic design
• Ads Audit
• Keyword Research

Graphic Design

• Graphic design [logos, flyers, postcards, business cards, decks, documents]

• Brand Identity [typefaces & colors]
• Landing page design
• Brand Audit
• Brand guidelines

PROJECT DELIVERABLES & TIMELINES

The delivery timeline may vary depending on the requirements and the nature of the task. Once the Client makes a marketing request, Colibri will provide further information on the timeline for that particular task. 

There is no maximum amount of iterations and feedback, but a request shall remain open as long as the Client requests changes. 

Once the top amount of requests determined by the selected plan has been reached, Colibri won’t allow the opening of new requests until one of the previous requests is closed. 

INVESTMENT & PAYMENT SCHEDULE 

The Client/User agrees to pay Colibri Digital Marketing on a monthly basis for the selected plan. 

Payment details & schedule will be set up through Stripe. If an invoice is delayed, Colibri Digital Marketing will cease operations immediately until the invoice is closed.

JOINT ACCOUNTABILITIES & EXPECTATIONS

Joint accountabilities

Clients/Users are responsible for:

• Meeting deadlines.

• Making decisions.

• Providing information such as documents, and photos when needed. 

• Providing access to accounts when needed. 

• Seeking business information such as testimonials and references.

• Assisting in finding participants for market research, if needed.

What to Expect

• Colibri Digital Marketing is open for business from 9 am to 5 pm, Monday through Friday.

• Due dates are by the end of the business day unless otherwise noted.

• Updates take place weekly or as agreed.

• Colibri Digital Marketing primarily uses Google Drive to collaborate with our clients on documents. If you are unfamiliar with using Google Drive, we will provide a free tutorial to help you become comfortable with this platform.

• If you have an urgent concern outside of business hours, email Maria at maria@colibridigitalmarketing.com. 

TERMS OF AGREEMENT

Section 1. SERVICES

Client hereby retains Colibri, and Colibri hereby agrees to provide the marketing and consulting services to Client pursuant to the terms and conditions in this Agreement (the “Services”) and incorporated herein by reference.

Section 2. COMPENSATION

The Client agrees to pay Colibri a retainer fee per month. As part of this assignment, the Client would bear all out-of-pocket expenses, such as outstation travel, stay, etc., incurred by Colibri. Such out-of-pocket expenses will be incurred by Colibri only after specific approval from the Client. Similarly, extra charges for any other services, including video creation, application development, media buying, purchase of licensed images and content, etc., will be charged at an extra cost.

Additional projects: The Client agrees to pay Retainer Fees against Invoices at the beginning of the month for that particular month. All other Invoices raised on the Client will become payable within 7 days from the date of all such Invoices. 

Taxes: Any applicable Federal, State, or Local Taxes shall be added to each invoice for services or materials rendered under this Agreement. Client shall pay any such taxes unless a valid exemption certificate is furnished to CDM for the state of use.

Late fees: Interest of 10% will begin accruing after 30 days for late payments.  

Section 3. TERM AND TERMINATION

3.1 This Agreement will commence on the Effective Date and continue until the completion of all Services by Colibri to Client, in accordance with the terms and conditions set forth hereto, unless it is terminated earlier pursuant to the provisions of this Section 3.2 hereof (the “Term”).

3.2 This Agreement may be terminated by either party immediately upon written notice if the other party: (i) becomes insolvent, (ii) files a petition in bankruptcy, or (iii) makes an assignment for the benefit of its creditors.  Furthermore, either party hereto may terminate this Agreement if the other party is in material breach of the terms and provisions of this Agreement, and fails to cure such breach within fifteen (15) days from the date of receipt of written notice informing it of the breach.  

3.3 Upon such termination, all rights and duties of the parties toward each other shall cease; however, Client shall be required to pay for any and all Services provided by Colibri to Client pursuant to the terms of this Agreement prior to the termination date of this Agreement.  In addition, all terms of this Agreement that by their nature should survive termination or expiration of the Agreement will survive the Agreement’s termination or expiration.

3.4 Either party may terminate this agreement by giving the other one month’s written notice, without assigning any reason whatsoever. The obligations of the parties shall continue during the notice period.

Section 4. CLIENT PROPERTY

All materials (including, without limitation, documents, drawings, photographs, videos, sketches, and all other tangible media of expression) furnished to Colibri by Client (“Client Property”) are and shall remain, the sole and exclusive property of Client, and Colibri hereby agrees and acknowledges that they will own no interest or right in, or title to, by virtue of the provisions of this Agreement. At Client’s request and no later than five (5) days after such request, Colibri shall destroy or deliver to Client, at Client’s option, all Client Property.

Section 5. IP OWNERSHIP

Colibri agrees and acknowledges that any and all intellectual property, if any, comprising the deliverables set forth in Project Deliverables (above) that Colibri creates for Client pursuant to the terms of this Agreement, including any all copyrightable materials (collectively, the “IP”) shall be the sole property of Client.  Colibri agrees to disclose to the Client any and all IPs promptly.  In the event that in accordance with any relevant provision of state and/or federal law, Colibri is deemed to own any interest in, or title to, the IP, she hereby does and will assign to Client or Client’s designee any and all title to, or interest in, the IP, as well as any and all associated records and intellectual property rights; they are so deemed to own.  

Section 6. CONFIDENTIALITY

6.1 “Confidential Information” means any proprietary information, logins and passwords, technical data, trade secrets, or know-how, including, but not limited to, service and product offering plans, services, products customers, customer lists, client information, markets, software, developments, processes, algorithms, technology, drawings, engineering, hardware configuration information, marketing, finances, non-public financial information or other business information disclosed by one party (the “Disclosing Party”) to this Agreement to the other party (the “Receiving Party”) either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment.

6.2 The Receiving Party will not, during or subsequent to the term of this Agreement, (i) use the Disclosing Party’s Confidential Information for any purpose whatsoever other than in connection with the performance of its obligations under the terms of this Agreement, or (ii) disclose the Confidential Information to any third party.  It is understood that said Confidential Information shall remain the sole property of the Disclosing Party.  The Receiving Party further agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information including, but not limited to, having each employee or contractor of the Receiving Party, if any, with access to any Confidential Information, execute a nondisclosure agreement with equivalent restrictions and limitations on disclosure of such information as are set forth in this Agreement.  Confidential Information does not include information which (i) is known to the Receiving Party at the time of disclosure as evidenced by written records of the Receiving Party, (ii) has become publicly known and made generally available through no wrongful act of the Receiving Party, or (iii) has been rightfully received by the Receiving Party from a third party who is authorized to make such disclosure.

6.3 Upon the termination of this Agreement, or upon the Disclosing Party’s earlier request, the Receiving Party will deliver to the Disclosing Party, or destroy, all of the Disclosing Party’s property or Confidential Information that the Receiving Party may have in the Disclosing Party’s possession or control.

Section 7. REMEDIES

Colibri acknowledges and agrees that the remedy at law for a breach or threatened breach of any of the parties’ obligations under Sections 4, 5, or 6 of this Agreement would be inadequate and, in recognition of this fact, in the event of a breach or threatened breach by a Colibri of said obligations under this Agreement, the breaching party agrees that, in addition to its remedy at law, at the non-breaching party’s election, it shall be entitled without posting any bond to obtain, and the breaching party agrees not to oppose a request for, equitable relief in the form of specific performance, temporary restraining order, temporary, preliminary, or permanent injunction, or any other equitable remedy which may then be available. Nothing contained in this Section 8 shall be construed as prohibiting the non-breaching party from pursuing, in addition, any other remedies available to it for such breach or threatened breach.  Colibri acknowledges that a remedy of law would be sufficient to make the party whole for any damages related to a breach by the client.

Section 8. INDEMNIFICATION

Each party agrees to indemnify, defend, and hold harmless the other party from and against any loss, cost, or damage of any kind (including reasonable outside attorneys’ fees) to the extent arising out of its breach of this Agreement, and/or its negligence or willful misconduct.

Section 9. DISCLAIMER/LIMITATION OF LIABILITY

EXCEPT AS OTHERWISE IS SET FORTH IN THIS AGREEMENT, OR ANY EXHIBIT HERETO, Colibri MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THIS AGREEMENT OR THE SERVICES (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). 

THE PARTIES WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE OR PROFITS) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, EXCEPT FOR A BREACH OF THE PROVISIONS OF SECTIONS 4, 6 OR 7 OF THIS AGREEMENT, THE PARTIES AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CLIENT TO Colibri UNDER THE TERMS HEREOF.  

Section 10. INDEPENDENT CONTRACTOR STATUS

Colibri’s relationship with Client is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture, or employment relationship.  Colibri will not be entitled to any of the benefits that Client may make available to its employees, including, but not limited to, group health or life insurance, profit sharing or retirement benefits.  Colibri is not authorized to make any representation, contract or commitment on behalf of Client unless specifically requested or authorized in writing to do so by a Company manager.  Colibri is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement.  Colibri is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing services under this Agreement.  No part of Colibri’s compensation will be subject to withholding by Client for the payment of any social security, federal, state or any other employee payroll taxes. Client will regularly report amounts paid to Colibri by filing Form 1099MISC with the Internal Revenue Service as required by law.

Section 11. NON-SOLICITATION

Both the Client and Colibri hereby covenant that during the term of this agreement and for a period of one year following its termination or expiration, it shall not, without the previous written consent of other party, employ or contract the services of any person who was employed or contracted by the party at any time during a period of 12 months preceding the date on which the offer for employment or contract is made to the party, unless both parties agree in writing to waive this clause.

Section 12. MISCELLANEOUS PROVISIONS

12.1 Subject to the limitations set forth below, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.  Neither party may assign this Agreement, in whole or in part, without the other party’s written consent, which such consent shall not be unreasonably withheld.

12.2 This Agreement may be amended or modified only in writing, signed by both parties.

12.3 All notices which concern any of the Agreement shall be given in writing, as follows: (i) by actual delivery of the notice into the hands of the party entitled to receive it or by facsimile to such party, in which case the notice shall be deemed given on the date it is sent; (ii) by Federal Express or any other overnight carrier, in which case the notice shall be deemed given on the day following the date it is deposited with such carrier; (iii) by mailing such notice by registered or certified mail, return receipt requested, in which case the notice shall be deemed given four days following the date it is deposited in the mail, or (iv) via acknowledged email.  All notices provided under any such agreement shall be to the last known address of the party entitled to receive it.  Any party may change its address for notice purposes, by providing written notice of the change of address to the other party.  

12.4 No waiver of any provision of this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.

12.5 If any provision of this Agreement, or its application to any person, place, or circumstance, is held by a court of competent jurisdiction, if applicable, to be invalid, unenforceable, or void, such provision will be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places, and circumstances will remain in full force and effect.

12.6 This Agreement shall be governed by and shall be construed in accordance with the laws of the State of California.  The exclusive venue for resolution of any dispute arising out of or relating to the formation, terms, termination, or breach of this Agreement will be the City and County of San Francisco, State of California.

Any dispute, difference, or question arising out of this agreement shall be settled amicably between the parties, failing which the same shall be referred to arbitration.

12.7 No party shall be in default under this Agreement if its performance is prevented, delayed, or hindered by force majeure, including but not limited to acts of nature (including fire, flood, earthquake, storm, hurricane, or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service. 

12.8 This Agreement may be executed in counterparts, and each counterpart shall have the same force and effect as an original and shall constitute an effective, binding agreement on the part of each of the undersigned.

12.9 This Agreement may be executed and delivered by facsimile or PDF, and upon such delivery, the facsimile or PDF signature shall be deemed to have the same effect as if the original signature had been delivered to the other party.  The failure to deliver the original signature copy and/or the nonreceipt of the original signature copy shall have no effect upon this Agreement’s binding and enforceable nature.

CONDITIONS & ACCEPTANCE

Conditions: 

1. Once accepted, this offer requires a full payment, even if the project is rescheduled or canceled, unless project delays or cancellations are caused by Colibri. Colibri Digital Marketing does not refund fees unless the team cannot provide agreed-upon deliverables.
2. If work is rendered undeliverable due to client delay (such as failure to meet deadlines or deliver content), payment is still due in full on the specified date.
3. Colibri Digital Marketing does not refund fees unless the team cannot provide agreed-upon deliverables.
4. As stated in the terms of service, clients may not hire or contract Colibri subcontractors or employees during the duration of the contract and for one year following termination.

Thank you for doing business with Colibri Digital Marketing.