Terms & Conditions / Terms of Service

Last Updated: 1-10-2025

I. Acceptance of Terms

  1. Agreement to Terms: By engaging SMK Brands for services, accessing our website, or utilizing any of our tools (collectively, the “Services”), you agree to be bound by these Terms and Conditions (“Terms”). If you disagree with any part of the terms, you must not use our Services.
  2. Binding Authority: You represent that you have the authority to bind the entity (Client) on whose behalf you are accepting these Terms.

II. Description of Services

  1. Scope of Work (SOW): SMK Brands will provide the digital marketing services as specifically outlined in a separate, mutually executed Statement of Work, Proposal, or Service Agreement (the “SOW”). Services may include, but are not limited to: SEO, PPC/Paid Media, Social Media Management, Content Creation, Website Development, and Lead Generation.
  2. No Guarantee of Results: Client acknowledges and agrees that the success of digital marketing depends on numerous factors, including search engine algorithm changes, third-party platform policies, and market competition. SMK Brands makes no guarantees regarding specific results, ROI, sales, or lead volumes.
  3. Third-Party Platforms: Services often rely on third-party platforms (Google Ads, Facebook, Google Analytics, etc.). SMK Brands is not responsible or liable for any platform downtime, policy changes, algorithm updates, or account suspensions outside of our reasonable control.

III. Client Responsibilities & Authorization

  1. Content & Access: Client agrees to provide all necessary, accurate, and complete materials (content, logos, images) and access credentials (website, hosting, ad accounts, analytics) in a timely manner. Delays in providing materials may impact timelines, for which SMK Brands will not be liable.
  2. Authorization: Client grants SMK Brands a limited, non-exclusive, non-transferable license and authorization to access and manage the Client’s digital accounts solely for the purpose of executing the Services.
  3. Legal Compliance of Content: Client represents and warrants that all materials, content, and data provided to SMK Brands do not infringe upon any third-party intellectual property, privacy rights, or violate any applicable US or Florida law, including but not limited to the Florida Information Protection Act (FIPA) and the Florida Digital Bill of Rights (FDBR).

IV. Compensation and Payment

  1. Fees: Client agrees to pay the service and/or retainer fees outlined in the SOW.
  2. Payment Terms: Invoices are due 15 days from the invoice date.
  3. Late Payments: Payments not received by the due date will incur a late fee of 1.5% per month or the maximum amount permitted by Florida law on the outstanding balance, or $50 per week, whichever is greater.
  4. Suspension of Services: SMK Brands reserves the right to suspend or terminate Services immediately, without liability, if any invoice is more than 30 days overdue.
  5. Non-Refundable Fees: All fees, retainers, and expenses are non-refundable.

V. Data Privacy and Digital Law Compliance

This section reflects your Florida location and the data-intensive nature of marketing.

  1. Data Processing Role: For the purpose of providing Services, SMK Brands generally acts as a “Processor” on behalf of the Client (the “Controller”) for any personal data handled in the execution of the Services. Client is solely responsible for its compliance obligations as a Controller.
  2. Telemarketing Compliance (Florida Mini-TCPA): If Services include outbound calling, text messaging, or automated voice messages, Client agrees to:
    • Provide only leads who have given “Prior Express Written Consent” as required by the Florida Telemarketing Act (Mini-TCPA).
    • Indemnify SMK Brands for any violation of the Mini-TCPA or Federal TCPA resulting from the use of client-provided lead data or messaging copy.
  3. Data Protection Assessment: Client acknowledges that processing data for Targeted Advertising and the Sale/Sharing of Personal Data may require a Data Protection Assessment under the Florida Digital Bill of Rights (FDBR), and Client will cooperate with SMK Brands to fulfill any such requirements.

VI. Intellectual Property (IP) Rights & Ownership

  1. Client IP: The Client retains all rights, title, and interest in and to any materials provided to SMK Brands (“Client Content”).
  2. SMK Brands IP (License): SMK Brands retains all ownership of proprietary methods, technologies, templates, software, and tools used to perform the Services (“Agency IP”). Client is granted a non-exclusive, non-transferable license to use the Agency IP solely for the duration and purpose of the Services.
  3. Work Product (Deliverables): Upon full and final payment, the Client will own the copyright to all final, approved Deliverables (e.g., ad copy, graphics, final blog posts). However, SMK Brands retains the right to use such Deliverables for portfolio and promotional purposes, unless Client explicitly restricts this in writing.

VII. Confidentiality

Both parties agree to treat all non-public information—including business strategies, performance data, proprietary technologies, and financial terms—as confidential and will not disclose it to any third party for a period of  3 years following the termination of the Services, except as required by law.

VIII. Limitation of Liability and Indemnification

  1. Limitation of Liability: In no event shall SMK Brands’s total liability for any claim arising out of or relating to these Terms or the Services exceed the total amount paid by the Client to SMK Brands during the three (3) months immediately preceding the event giving rise to the claim.
  2. Indemnification: Client agrees to indemnify, defend, and hold harmless SMK Brands, its officers, and employees from and against any and all claims, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from:
    • Client’s content or materials infringing on a third-party IP right.
    • Client’s breach of any US or Florida law (including, but not limited to, the FDBR, FIPA, or Mini-TCPA).
    • Any third-party claim arising from Client’s business operations.

IX. Term and Termination

  1. Term: This Agreement begins on the Effective Date specified in the SOW and continues for the term specified therein (e.g., 6 months, 12 months, or month-to-month).
  2. Termination for Convenience: Either party may terminate a month-to-month agreement with [30/60] days written notice. If a fixed-term SOW is terminated early for convenience, the Client must pay a Termination Fee equal to the retainer for [X] months remaining or the cost of Services rendered up to the date of termination.
  3. Termination for Cause: Either party may terminate immediately upon written notice if the other party materially breaches these Terms and fails to cure the breach within [15] days.

X. Governing Law and Dispute Resolution

  1. Governing Law: These Terms and any related dispute shall be governed by and construed in accordance with the laws of the State of Florida, U.S.A., without regard to its conflict of law principles.
  2. Venue: Any legal action or proceeding arising under these Terms must be brought exclusively in the state or federal courts located in the state or federal courts of Polk County, Florida.

XI. Miscellaneous

  1. Changes to Terms: SMK Brands reserves the right to update these Terms at any time. We will provide notice of material changes by updating the “Last Updated” date. Continued use of the Services after such changes constitutes acceptance.
  2. Independent Contractor: The relationship between the parties is that of independent contractors. Nothing herein shall be construed as creating an employer/employee, partnership, or joint venture relationship.
  3. Severability: If any provision of these Terms is found to be unenforceable, the remaining provisions will remain in full force and effect.

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