Managed Marketing Capacity Terms & Conditions

Company:
SMOKYBRANDS MARKETING AGENCY LLC
2109 West Market Street
Suite 100-Q
Johnson City, TN 37604
USA

1. Scope of Application

These Managed Marketing Capacity Terms & Conditions (“Service Terms”) apply exclusively to the Managed Marketing Capacity service (“Service”) provided by SMOKYBRANDS MARKETING AGENCY LLC (“Company,” “we,” “us”) to business clients (“Client” or “you”).

The Service is provided strictly on a business-to-business (“B2B”) basis. The Client represents and warrants that it is acting in a commercial or professional capacity and not as a consumer.

These Service Terms govern all Managed Marketing Capacity subscriptions, retainers, recurring capacity arrangements, replenishment purchases, additional capacity purchases, task requests, and related services unless expressly agreed otherwise in writing by the Company.

2. Relationship to Master Agreement; Integration; Priority

These Service Terms supplement and are subject to the Company’s general Contract Terms (“Master Agreement”), available at:

The Master Agreement is hereby expressly incorporated by reference into these Service Terms and forms an integral and inseparable part of the contractual relationship between the Company and the Client.

The Client expressly acknowledges and agrees that acceptance of these Service Terms also constitutes acceptance of the Master Agreement.

These Service Terms and the Master Agreement shall be interpreted together as one integrated contractual framework.

In the event of any conflict, inconsistency, or discrepancy between the Master Agreement and these Service Terms, these Service Terms shall prevail solely with respect to the Managed Marketing Capacity service and only to the extent of such conflict.

In all other respects, the Master Agreement shall remain fully applicable, enforceable, and controlling.

3. Nature of the Service

Managed Marketing Capacity is a recurring capacity-based marketing support service through which the Client purchases a predefined monthly allocation of professional marketing work capacity measured in hours (“Capacity”).

The Service is intended to provide the Client with ongoing access to marketing-related execution, support, coordination, consulting, creative work, optimization work, technical work, and related marketing services within the limits of the purchased Capacity allocation.

The Service is not a fixed-scope project, fixed-output engagement, employment relationship, staffing arrangement, outsourcing agreement, dedicated personnel arrangement, emergency support service, service level agreement, or guarantee of unlimited work.

The Service is provided on a commercially reasonable efforts basis and subject to operational availability, Client cooperation, available Capacity, third-party system conditions, and the Company’s professional judgment.

4. Capacity-Based Service Model

The Client acknowledges and agrees that the Service operates exclusively on a capacity-based allocation model.

The Client purchases access to a predefined quantity of monthly professional work capacity measured in hours.

The Client may submit an unlimited number of requests; however, actual execution capacity is strictly limited by the purchased monthly Capacity allocation.

The existence of submitted requests does not obligate the Company to complete all requested work within any particular timeframe, sequence, urgency level, or billing period.

The Company retains sole discretion regarding time estimation, capacity allocation, task prioritization, task categorization, resource assignment, execution sequencing, operational scheduling, task acceptance, and determination of consumed Capacity.

All time calculations and capacity determinations made by the Company shall be binding absent demonstrable fraud or clear mathematical error.

5. Monthly Capacity Allocation

The applicable monthly Capacity allocation shall be the allocation specified in the applicable order form, proposal, invoice, subscription confirmation, order confirmation, service page, or written confirmation.

Unless otherwise agreed in writing, Capacity is allocated on a recurring monthly basis.

Unused Capacity automatically expires at the end of the applicable billing cycle and has no cash value, refund value, carry-over value, credit value, future offset value, or redemption value.

No rollover applies unless expressly agreed in writing by the Company.

6. Capacity Exhaustion and Additional Capacity

If the purchased monthly Capacity allocation is exhausted before the end of the applicable billing cycle, the Company may, at its sole discretion, suspend further work until the next billing cycle, offer additional paid Capacity, offer emergency Capacity extensions, prioritize remaining tasks differently, defer pending requests, or decline additional work requests.

The Company shall have no obligation to continue performing work once the purchased Capacity allocation has been exhausted.

Any additional Capacity shall be invoiced separately unless expressly included in an applicable written agreement.

7. Automatic Capacity Replenishment Authorization

If expressly authorized by the Client through the applicable order form, Service Terms acceptance, subscription agreement, written approval, or other written authorization, the Company may issue additional replenishment invoices where purchased service capacity, workload allocation, or operational usage materially exceeds the remaining available Capacity allocation.

Unless otherwise agreed in writing, automatic replenishment may occur in predefined increments of USD $500 plus applicable taxes.

Automatic replenishment may occur only if the Client has previously agreed to automatic replenishment in writing or through the applicable order form, the replenishment amount or replenishment logic has been disclosed in advance, and the Company provides written notice by email before or upon replenishment.

The Company shall not automatically charge credit cards or payment processors unless separately authorized.

All replenishment amounts shall be invoiced separately and shall be due in accordance with these Service Terms and the Master Agreement.

8. Replenishment Notice; Objection Procedure

Unless otherwise agreed in writing, replenishment invoices shall become binding if the Client does not object in writing within seventy-two (72) hours after the replenishment notice is sent.

The Client expressly acknowledges and agrees that silence following such notice may constitute acceptance where legally permissible and where prior authorization has been granted.

Any objection must be specific, written, and sent within the objection period. General dissatisfaction, disagreement with prioritization, disagreement with time usage, or later budget concerns shall not invalidate Capacity already used, work already performed, or replenishment already triggered under prior authorization.

If the Client objects, the Company may suspend all further work until the objection is resolved and all undisputed amounts are paid.

9. No Guaranteed Availability; No SLA

The Service does not include any guaranteed response time, completion deadline, turnaround time, processing speed, availability level, service level agreement (“SLA”), resource reservation, staffing guarantee, delivery priority, or emergency availability.

The Company may prioritize tasks based on operational considerations, complexity, urgency, resource availability, commercial reasonableness, legal risk, third-party dependencies, and internal workflow management.

Urgent requests, rush work, expedited processing, or emergency work may require additional Capacity purchases or separate written agreements.

10. No Dedicated Personnel; Independent Contractor Relationship

The Service does not provide dedicated employees, dedicated personnel, exclusive staffing, employment relationships, joint employment, agency authority, fiduciary relationships, or personnel continuity guarantees.

The Company retains sole discretion regarding staffing, subcontracting, internal workflow organization, personnel assignment, and operational execution.

Nothing in these Service Terms shall be interpreted as creating an employment, partnership, joint venture, agency, fiduciary, franchise, staff leasing, or employee-like relationship.

11. Task Submission and Prioritization

Tasks may be submitted through email, project management systems, messaging systems, ticket systems, written communication, or other methods approved by the Company.

The Company retains sole discretion regarding whether tasks are accepted, task sequencing, task splitting, task grouping, work methodology, execution timing, commercial prioritization, and resource allocation.

The Client acknowledges that simultaneous submission of numerous tasks does not obligate immediate execution or parallel processing.

The Company may require clarification, additional information, approvals, access credentials, brand materials, legal review by the Client, or other Client input before performing any task.

Time spent reviewing, clarifying, structuring, prioritizing, or administratively processing task requests may count against Capacity.

12. Scope Flexibility; No Fixed Deliverables

The Service is intentionally flexible and does not guarantee any predefined deliverables, quantities, campaigns, outputs, projects, milestones, implementation volumes, number of tasks, number of revisions, number of posts, number of pages, number of ads, rankings, leads, sales, or commercial results unless expressly agreed in writing.

The Company may perform different categories of marketing-related work within the purchased Capacity allocation, including SEO work, content work, website work, creative work, branding work, consulting support, campaign work, strategy support, technical optimization work, social media support, Generative Engine Optimization support, reputation-related work, conversion optimization work, analytics-related work, and related marketing support.

The Company shall have no obligation to perform work outside commercially reasonable marketing-related activities or outside its professional capabilities.

13. Excluded Services

Unless expressly agreed in writing, the Service does not include legal services, legal review, financial advice, tax advice, compliance review, cybersecurity audits, penetration testing, custom software development, enterprise infrastructure administration, hosting services, unlimited revisions, 24/7 support, guaranteed emergency response, on-site work, printing costs, advertising spend, third-party software fees, third-party contractor costs, or services requiring regulated professional licenses.

The Company may decline any task that appears unlawful, misleading, reputationally harmful, technically unreasonable, commercially unreasonable, unsafe, or outside the intended Service model.

14. External Costs and Third-Party Expenses

External costs are not included unless expressly stated otherwise in writing.

External costs may include advertising spend, software subscriptions, plugins, stock assets, AI platform costs, printing costs, hosting costs, third-party contractor costs, media buying costs, licensing fees, domain fees, legal review costs, compliance review costs, and similar expenses.

The Client remains solely responsible for all external costs.

The Company may require advance payment or direct Client payment for external costs before using, approving, ordering, or coordinating any third-party expense.

15. Minimum Commitment Term

Unless otherwise agreed in writing, the minimum contractual commitment term is three (3) months.

Longer minimum commitment terms may apply where discounted pricing has been granted.

The Client acknowledges that discounted pricing is conditional upon the agreed minimum commitment duration.

Early termination does not eliminate payment obligations for the agreed minimum commitment term.

16. Renewal and Continuity

Unless otherwise agreed in writing, the Service automatically renews for successive monthly periods following expiration of the minimum commitment term.

Either party may terminate the Service after expiration of the minimum commitment term by providing written notice at least thirty (30) days before the next renewal date.

Termination does not eliminate accrued payment obligations, replenishment obligations, external cost obligations, or committed amounts under the agreed minimum term.

17. Discounts and Commitment Incentives

The Company may offer discounted pricing for extended minimum commitment terms.

Unless otherwise agreed in writing, six (6) month commitments may receive a three percent (3%) discount, twelve (12) month commitments may receive an eight percent (8%) discount, and twenty-four (24) month commitments may receive a ten percent (10%) discount.

Discounts apply solely to the Company’s net service fees and do not apply to external costs, third-party expenses, taxes, advertising spend, pass-through costs, or replenishment amounts unless expressly confirmed in writing.

If the Client breaches, fails to pay, improperly terminates, repudiates the agreement, or prematurely terminates before the agreed commitment expires, the Company may retroactively revoke discounts and invoice the difference between discounted and standard pricing to the maximum extent permitted by law.

18. Fees and Payment Terms

Payment shall be made exclusively by invoice unless expressly agreed otherwise in writing.

The monthly Capacity fee shall be invoiced in advance.

All invoices are due within seven (7) calendar days after the invoice date unless a different due date is expressly stated on the invoice.

The initial monthly Capacity invoice shall become due within seven (7) calendar days after submission of a binding order, written acceptance, instruction to proceed, issuance of an order confirmation, or issuance of the invoice, whichever occurs first.

All subsequent invoices shall likewise be due within seven (7) calendar days after the invoice date.

The Company shall have no obligation to allocate resources, reserve Capacity, commence work, continue work, or maintain availability unless payment has been received in cleared funds.

19. Suspension for Non-Payment

If payment is not received when due, the Company may immediately suspend work, suspend access, pause task processing, deprioritize requests, reallocate resources, terminate the Service, accelerate outstanding balances, and pursue any remedy available under the Master Agreement.

Non-payment does not cancel the agreement or release the Client from payment obligations.

Suspension does not extend the billing cycle, create rollover rights, reduce fees, waive payment obligations, or create any claim against the Company.

20. No Refunds

All payments are non-refundable to the maximum extent permitted by law.

The Client acknowledges that the Company allocates operational capacity, staffing, scheduling, and resources in reliance upon the purchased subscription and Capacity allocation.

No refunds are owed for unused Capacity, Client delays, missing information, delayed approvals, subjective dissatisfaction, changed business priorities, non-use, internal Client issues, or failure to submit tasks.

21. No Chargebacks or Payment Reversals

The Client agrees not to initiate chargebacks, reversals, payment disputes, or similar actions except in cases of demonstrable fraud.

Dissatisfaction, disagreement regarding time allocation, disagreement regarding prioritization, disagreement regarding capacity consumption, unused Capacity, or subjective dissatisfaction shall not constitute valid grounds for reversal.

Any improper chargeback or payment dispute constitutes material breach of contract and shall trigger the remedies available under the Master Agreement.

22. Intellectual Property

All work product, materials, frameworks, systems, methodologies, templates, concepts, deliverables, creative assets, drafts, source files, editable files, internal materials, strategies, and related materials remain the property of the Company until full payment has been received.

Upon full payment, the Client receives only the license or rights expressly granted under the Master Agreement, applicable order confirmation, invoice, SOW, or written agreement.

No transfer of source files, editable files, templates, methods, internal systems, reusable assets, or proprietary know-how is included unless expressly agreed in writing.

23. Client Responsibilities

The Client shall provide accurate information, necessary approvals, required access, credentials, brand materials, legal approvals where needed, timely feedback, lawful materials, and commercially usable instructions.

The Client shall cooperate reasonably and respond in a timely manner.

The Client remains solely responsible for legal compliance of Client-provided materials, claims, offers, testimonials, customer data, advertising claims, pricing statements, and business practices.

The Company shall not be liable for delays, inefficiencies, inaccurate outcomes, additional Capacity consumption, or reduced productivity caused by incomplete information, missing approvals, delayed responses, unclear instructions, conflicting stakeholders, or inaccurate Client input.

24. Approval Delays and Client Delays

Delays caused by the Client shall automatically extend all timelines.

The Company shall not be liable for reduced efficiency, workflow disruption, scheduling disruption, delayed execution, unused Capacity, or missed opportunities caused by delayed Client approvals or communication.

The Company may reallocate resources during periods of Client inactivity.

Capacity may still expire at the end of the billing cycle even if Client delay, missing information, or lack of approval prevents performance.

25. No Guarantee of Results

The Company does not guarantee revenue increases, lead generation, SEO rankings, advertising performance, conversion improvements, profitability, growth, traffic, visibility, engagement, sales, business success, customer acquisition, platform approval, algorithmic visibility, AI search visibility, reputation improvement, or commercial outcomes of any kind.

All services are provided on a commercially reasonable efforts basis only.

Marketing performance depends on external factors outside the Company’s control, including market conditions, competition, offer quality, Client cooperation, advertising budgets, platform algorithms, third-party systems, pricing, reputation, customer demand, and legal restrictions.

26. Independent Business Judgment

All business decisions remain solely the responsibility of the Client.

The Client shall independently evaluate all recommendations, implementations, strategies, and decisions.

The Company’s recommendations are professional opinions and operational suggestions only and do not replace the Client’s independent business judgment, legal review, financial review, or executive decision-making.

27. Limitation of Liability

The limitation of liability provisions in the Master Agreement apply fully to these Service Terms.

To the maximum extent permitted by law, the Company’s total aggregate liability arising out of or related to the Service shall not exceed the greater of the fees actually paid by the Client during the three (3) months preceding the event giving rise to the claim or USD $1,000, unless a lower or different limitation is enforceable under the Master Agreement or applicable non-waivable law.

In no event shall the Company be liable for indirect damages, consequential damages, incidental damages, special damages, punitive damages, loss of profits, loss of revenue, business interruption, loss of opportunity, reputational harm, advertising losses, platform losses, ranking losses, or dependency-related damages.

28. Exclusive Remedy

If liability is established, the Client’s exclusive remedy shall be limited solely to re-performance of the affected Service portion at the Company’s sole discretion, unless applicable non-waivable law requires otherwise.

Refunds are excluded except where non-waivable law expressly requires otherwise.

29. Indemnification

The Client shall indemnify, defend, and hold harmless the Company from and against all claims, damages, liabilities, losses, costs, and expenses arising out of Client materials, Client instructions, Client legal violations, advertising claims, third-party claims, platform violations, privacy violations, intellectual property claims, misuse of the Service, or breach of these Service Terms or the Master Agreement.

The indemnification provisions in the Master Agreement apply fully to these Service Terms.

30. Force Majeure

The Company shall not be liable for delays or failures caused by circumstances beyond reasonable control, including platform outages, cyber incidents, algorithm changes, hosting failures, third-party failures, internet outages, governmental actions, labor shortages, illness, natural disasters, payment processor failures, software failures, regulatory changes, or other force majeure events described in the Master Agreement.

31. Suspension, Refusal, and Termination

The Company may immediately suspend, refuse, or terminate the Service if payment is overdue, the Client becomes abusive, the Client becomes unreasonable, the Client creates operational disruption, the Client engages in unlawful conduct, the Client requests unlawful work, the Client creates reputational risk, the Client misuses the Service, or performance becomes commercially unreasonable.

Termination does not eliminate accrued payment obligations, minimum term obligations, replenishment invoices, external cost obligations, or enforcement rights.

32. Arbitration and Dispute Resolution

The dispute resolution, arbitration, class action waiver, jury waiver, governing law, attorneys’ fees, and exclusive forum provisions of the Master Agreement apply fully to these Service Terms.

To the extent these Service Terms are interpreted independently, all disputes arising out of or relating to the Service shall be governed by Tennessee law and resolved exclusively through binding arbitration administered under the AAA Commercial Arbitration Rules in Tennessee, subject to the exceptions and enforcement rights stated in the Master Agreement.

33. Survival

All provisions relating to payment obligations, replenishment obligations, unused Capacity, intellectual property, confidentiality, disclaimers, limitation of liability, indemnification, arbitration, evidence, no reliance, chargebacks, governing law, and enforcement shall survive termination indefinitely.

34. No Waiver

Failure by the Company to enforce any provision shall not constitute waiver.

No waiver shall be effective unless expressly stated in writing by the Company.

35. Severability

If any provision is deemed invalid or unenforceable, the remaining provisions shall remain in full force and effect.

Any invalid provision shall be modified to the minimum extent necessary to make it enforceable to the maximum extent permitted by law.

36. Entire Agreement

These Service Terms, together with the Master Agreement and any applicable proposal, order confirmation, invoice, order form, subscription confirmation, service page, SOW, or written agreement, constitute the complete agreement governing the Managed Marketing Capacity service.

No oral statement, informal message, sales communication, marketing statement, course of dealing, or operational communication shall modify these Service Terms unless expressly confirmed in writing by the Company.