Last updated 03/06/2025
Please read these Terms and Conditions carefully. It is a condition of our Work for you, and of your use of any of our services, that you comply with them.
1.1 “Agreement” means (1) any Marketing Services Proposal, Website Development Proposal, or other proposal from, or contract or agreement (including but not limited to nondisclosure or confidentiality agreements and purchase orders) between, you and Simple Machines Marketing, LLC; (2) any applicable Schedule of Work; and (3) these Terms.
1.2 “Customer Materials” means your text, graphics, forms, templates, databases, software, logos, Intellectual Property, or administrative features that you provide to us.
1.3 “Deliverables” means the tangible work product resulting from our performance of Work under an Agreement. The tangible work product may include hardware, software, documentation, license key codes, specifications, text, graphics, and other materials, including any updates and upgrades to them. It may also include third-party components, including open source components, which are provided and licensed to you under the terms and conditions of the respective third-party licenses, and as may otherwise be described in the applicable Schedule of Work.
1.4 “Effective Date,” unless otherwise specified in an Agreement, means the date on which our specific Work under the applicable Schedule of Work commences.
1.5 “Furnish-Only” means Products that Customer installs.
1.6 “Intellectual Property” includes, without limitation, inventions, discoveries, creations, works of authorship, and other subjects of patent, copyright, or trade secret law.
1.7 “Schedule of Work” means the Description of Work, Specifications, performance obligations, Payment Terms, and/or Delivery Schedule as agreed between you and us with respect to the specific Work at issue.
1.8 “Simple Machines,” “we,” “our,” and “us” refer to Simple Machines Marketing, LLC, its subsidiaries and affiliates, and any other person or entity providing Work to you under the direction of Simple Machines.
1.9 “Terms” means these Terms and Conditions.
1.10 “Work” means the specific services and/or Deliverables we will provide you under an Agreement between you and us.
1.11 “You,” “your,” and “Customer” mean the person or entity that enters into an Agreement with Simple Machines.
2.1 Scope change. A “Scope Change” is any material change or addition you request to the Description of Work, Specifications, performance obligations, Payment Terms, and/or Delivery Schedule. A Scope Change is not intended to include the mere refinement, correction, or detailing of Work.
2.2 Scope change consequences. If you request a Scope Change, you shall provide us written notice. Upon our receipt of that notice and acceptance of the Scope Change, we reserve the right to amend the Schedule of Work, including but not limited to Payment Terms and Delivery Schedule. We will not begin work requested by a Scope Change until we receive a signed Scope Change or amended Schedule of Work.
2.3 Timeliness. We will make reasonable efforts to meet the Delivery Schedule. In the event of a Scope Change, or a delay in receiving content or other requested materials from you, we reserve the right to unilaterally amend the Delivery Schedule and cost of Work in a manner that is reasonable and commensurate with the nature of the Scope Change or delay. We will provide you with timely notice of any such amendments.
2.4 Content dependencies. Whenever you must submit text or graphics to us, you shall submit text in digital format (either ASCII text or Microsoft Word files) and graphics in digital format (.gif, .tif, .bmp, .jpg). Data assumptions and limitations can be found on Data Import, Cleanup, and Segmentation – Assumptions & Limitations. Any delay in the proper delivery of text and graphics, or the provision of content or data in excess of the quantity, complexity, or scope reasonably anticipated, may result in a corresponding delay in the Delivery Schedule, an adjustment of the cost of Work, or both.
2.5 Editorial and technical consulting services fees. If you request, and we agree to provide, Editorial Consulting Services and/or Technical Consulting Services, we shall provide, and you shall pay for, those additional services at agreed-upon rates.
2.6 Travel expenses. Travel expenses are not a component of the costs charged under any Agreement. You will therefore reimburse us for all reasonable travel, accommodation, and related costs if one or more of our employees must travel from our headquarters in connection with your Work.
2.7 Outside resources. Simple Machines may contract with outside resources to help us provide the proper Work and value to fit your needs. During the term of any Agreement between Simple Machines and you, and for twelve (12) months after the end of any such Agreement, you agree not to directly or indirectly contract with any such resource that Simple Machines has contracted with to help service you without our prior written consent.
2.8 Rounds of changes. Unless otherwise specified in the applicable Schedule of Work: (a) we include a “fair” and “reasonable” set number of rounds of changes (three (3) rounds) during our Work on a website or the application design and development phase; (b) any extra changes you require may incur additional fees and costs; and (c) changes must be submitted in one (1) email, and one (1) email of changes (within the scope of a Project) is considered one (1) round of changes. Please limit your changes to comply with the agreed specifications. Failure to do so may result in additional fees and costs.
2.9 Failure or delay; support. We are not obliged to put in place any substitute or alternative system should there be a failure of, or delay in, the provision of any Work. Except as otherwise specified in a Schedule of Work, we are not obliged to support any Deliverable, whether by providing advice, training, error correction, modification, updates, new releases, or enhancements, or otherwise.
The following payment terms apply unless otherwise specified in the applicable Agreement with you.
3.1 Due dates. Unless otherwise specified in the Schedule of Work, you agree to pay us for all Deliverables, without offset, according to the invoice terms we provide to you. All amounts quoted or agreed to between us are net of applicable taxes and any other governmental-imposed charges or expenses. All such taxes, charges, and expenses are your responsibility, except (a) taxes on our net income, and (b) as otherwise specified in the Schedule of Work. Invoiced amounts may include applicable sales or use taxes. With respect to all payments due and payable to us by you under an Agreement, time is of the essence.
3.2 Late payment. If you do not pay us when due, you authorize us to charge (a) a fixed late fee of $50.00, plus (b) interest at a rate of 1.5% per month on all amounts due and owing. You will also be liable, without prior notice, for all collection costs we incur pursuing you for unpaid obligations or other breaches of any Agreement, including but not limited to court costs and reasonable attorneys’ fees.
3.3 Retainer. Unless otherwise specified in the Schedule of Work, we reserve the right to request that you provide us with a retainer (“Retainer”) before Work begins, or at any other time we deem necessary or appropriate. At our option, any such Retainer may either be held by us to apply against the last invoice for a Project, or be applied monthly against invoices or other amounts you then owe us. You will be periodically provided with the details of each application of amounts from the Retainer, and you will then replace, or “true up,” the amounts used so that the full Retainer is available, if necessary, for the next monthly or other periodic application against amounts you may owe us for the Work. We will not pay you any interest or other amounts on any Retainer balance. At your written request, we will return the balance of any Retainer to you after the Work is completed and all amounts due to us are finally satisfied.
3.4 Insufficient funds. A charge of $50.00 will be assessed for any check or other payment returned from the bank due to insufficient funds or another problem with your bank relationship or available funds.
3.5 Suspension or termination of work. If any payment due to us is more than fifteen (15) days late, we are entitled, at our discretion and without prior written notice or prejudice to any other remedies we may have, to suspend our Work, withhold Deliverables, and/or terminate any Agreement.
3.6 Credit check. You agree to allow us to engage a credit reference agency to determine whether we should extend credit to you. If we determine that your credit is insufficient, we reserve the right to require full payment in advance for Work rendered.
3.7 Block of time. From time to time we may offer, and you may purchase, a block of hours (“Block”) at a reduced rate from our “rack rate” for one (1) or more specific projects. When a Block is purchased, the period over which it may be used at your direction will be specified. Hours purchased in a Block but not used when the specified period ends shall expire, unless we choose, in our sole discretion, to allow you to use some or all of the unused hours for a related or similar project. Amounts paid for a Block (in part or in whole) are not refundable and may not be carried over to a subsequent year without our prior written approval, which may be granted or withheld in our sole discretion.
3.8 Fee increases. We reserve the right to adjust our hourly rates by 5% year over year, not more than once a year, and we will endeavor to provide you with prior written notice of any such change.
3.9 Cancellation. If we discontinue Work due to your non-payment or other breach of the Agreement, you remain liable to us for the total cost of the Agreement or specific Schedule of Work at issue, including all disbursements, unless otherwise agreed between the parties. Furthermore, we will not refund (in part or in whole) any deposits received for the commencement of Work, under any circumstances, unless we otherwise agree in writing. We reserve the right to keep all amounts from the deposit if Work has commenced and is terminated by you without cause or by us with cause. We will not be liable for any loss or damage whatsoever arising from any such cancellation. If you terminate without cause, you are responsible for our costs and expenses incurred to date, as well as the remaining balance of the payments to be due under the Agreement or the applicable Schedule of Work. If you terminate without cause, you are responsible for our costs and expenses incurred to date, as well as half of the remaining balance of the payments to be due under the Agreement or the applicable Schedule of Work.
3.10 Quote term. All prices quoted are valid for only thirty (30) days from the date of the written quotation, unless otherwise specified in the applicable quote or proposed Schedule of Work.
4.1 Customer Materials. We agree that the Customer Materials shall be and remain the sole property of Customer. You represent and warrant that you have full right, license, and authorization to provide the Customer Materials to us for use as necessary in or for the Work, and/or otherwise for our reproduction and/or publication of the Customer Materials as necessary or desirable as part of or related to the Work and/or any Deliverables. Furthermore, you indemnify, and agree to defend and hold us harmless from, any and all liability, loss, damages, costs, and expenses arising from our use of the Customer Materials. You also grant us a nonexclusive, fully paid, royalty-free license to use, reproduce, and modify any Customer Materials you provide to us for the purpose of, or as part of, our performing the Work and/or creating and making use of any Deliverables.
4.2 Ownership of Deliverables. We shall retain ownership of all Deliverables, except with respect to any Customer Materials, including without limitation all of our tools, applications, templates, libraries, and similar items we bring to each project or that we obtain or create and that are used to develop the Deliverables and/or are incorporated into the Deliverables.
4.3 Retention of rights. Subject to the rights granted herein, we will retain all ownership of all Intellectual Property in and to our programs, systems, links, tools, templates, and all technologies and methodologies created, obtained, or developed by us or licensed to us, as well as all products of any Implementation Support Services, Editorial Consulting Services, Technical Consulting Services, or other services we provide for you. Notwithstanding the foregoing, you retain ownership of all of your Intellectual Property that you license or provide to us for use as part of the Work.
4.4 Customer license. We grant you a non-exclusive, worldwide, non-transferable license to use any Deliverables we provide to you as described in the relevant Schedule of Work. You may transfer these rights only in conjunction with a merger or a sale of substantially all of your assets, in which case the rights will be transferred only to the surviving or acquiring entity. This license does not permit you to sublicense rights to any third party without our prior written consent.
4.5 Use of Simple Machines’ Intellectual Property. Without limiting the generality of anything set forth in the applicable Agreement, you agree that you shall use our Intellectual Property, and any Intellectual Property of others that we have provided and/or otherwise licensed to you, solely as permitted by such Agreement, and shall not yourself, or permit others to, before, during, or after the Term:
4.6 Audit rights. You agree that an independent audit firm may, upon reasonable notice, examine and audit your records, operations, and systems to ensure compliance with any license we grant. Any audit will be performed during your regular business hours and in a manner that avoids unreasonable interference with your business operations.
5.1.1 WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE WORK, SERVICES, DELIVERABLES, INTELLECTUAL PROPERTY, OR EQUIPMENT YOU RECEIVE FROM US, AND DISCLAIM ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS SPECIFICALLY CONTAINED IN THE APPLICABLE SCHEDULE OF WORK. OTHER THAN THAT, ALL OF THE FOREGOING ARE PROVIDED ON AN “AS IS” BASIS, AND YOUR USE OF THEM IS AT YOUR OWN RISK.
5.1.2 WE ARE NOT RESPONSIBLE FOR CIRCUMSTANCES BEYOND OUR CONTROL, INCLUDING WITHOUT LIMITATION ACTS OR OMISSIONS OF OTHERS, ATMOSPHERIC CONDITIONS, OR ACTS OF GOD. WE DO NOT PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE. WE MAY NOT MANUFACTURE ANY EQUIPMENT OR SOFTWARE THAT YOU MAY USE IN CONNECTION WITH YOUR SERVICE, AND YOUR ONLY WARRANTIES AND REPRESENTATIONS WITH RESPECT TO EQUIPMENT OR SOFTWARE ARE THOSE PROVIDED BY THE MANUFACTURER (WITH RESPECT TO WHICH WE HAVE NO LIABILITY WHATSOEVER).
5.2.1 EXCEPT FOR DAMAGES CAUSED BY OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL WE BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA, OR USE, THE COST OF ALTERNATIVE WORK OR SERVICES, INTERRUPTED COMMUNICATIONS OR NETWORK OUTAGES, OR ANY DEFECT, EFFORT, OR MALFUNCTION OF ANY WORK, SERVICES, OR DELIVERABLES, EVEN IF WE HAVE BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES.
5.2.2 IF WE ARE FOUND TO BE RESPONSIBLE TO YOU FOR DAMAGES IN ANY WAY RELATING TO OUR WORK, SERVICES, DELIVERABLES, INTELLECTUAL PROPERTY, OR EQUIPMENT, YOU AGREE THAT OUR LIABILITY TO YOU WILL NOT EXCEED THE LESSER OF (1) THE GROSS PRICE OF THE APPLICABLE SCHEDULE OF WORK WITH YOU, OR (2) THE PRO-RATED MONTHLY RECURRING CHARGE FOR THE APPLICABLE SERVICES DURING THE PERIOD IN WHICH YOU INCUR SUCH DAMAGES.
5.3 Customer data. Notwithstanding anything to the contrary in these Terms or otherwise in any Agreement: (a) the Customer is responsible for ensuring that all of its files and/or data are adequately duplicated, documented, and backed up; and (b) we are not responsible for Customer’s failure to adequately duplicate, document, and/or back up Customer files and/or data, nor for the costs of reconstructing any file or data stored on discs, files, tapes, memories, or otherwise that may be lost during the course of our Work.
5.4 Indemnification. You agree to indemnify, defend, and hold harmless us and our affiliates, and our and their employees, officers, owners, representatives, and agents, from any and all claims, losses, liabilities, damages, expenses, and costs (including reasonable attorneys’ fees and court costs) to the extent they result: (a) from your use of any Deliverable or any of the Services; (b) from your breach of any of your covenants, obligations, or representations set forth in any applicable Agreement; (c) from the transmission by or for you of any illegal, fraudulent, or offensive material; or (d) from any willful, unlawful, or negligent act or omission of you, your users, or contractors.
6.1 Confidential information. “Confidential Information” means any information disclosed by one party to another (a) in written, graphic, machine-readable, or other tangible form and marked “Confidential,” “Proprietary,” or in some other manner to indicate its confidential nature, and (b) oral information designated as confidential at the time of oral disclosure and designated in writing as “Confidential Information” within thirty (30) days after the oral disclosure. As between you and us, Intellectual Property we provide to you, whether or not so designated, shall be deemed our Confidential Information.
6.2 Degree of care. Each party shall not disclose to any third party, or use, such Confidential Information except as permitted under the applicable Agreement. Each party shall use the same degree of care it uses to prevent the disclosure of its own Confidential Information of like importance to prevent accidental disclosure, and shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of Confidential Information.
6.3 No solicitation. You acknowledge that we provide a valuable service under the applicable Agreement by introducing you to various persons qualified to perform the Work. You further acknowledge that you would receive substantial additional value, and we would be deprived of the benefits of our workforce, if you directly or indirectly hire our employees or contractors after we have introduced them to you. Therefore, without our prior written consent, you shall not directly or indirectly solicit the employment or retention of our employees or contractors who are or have been assigned to perform Work for you until at least one (1) year after completion of our Work. If you employ or retain one of our employees or contractors assigned to perform Work, you agree to pay us, within thirty (30) days of the date of the hiring or retention, an amount equal to 100% of the gross annual salary or other consideration we pay to or for the person you hire, as a fee for the additional value obtained.
7.1 Force majeure. We shall not be liable for non-performance caused by events or conditions beyond our reasonable control. This provision does not relieve you from making payments due and owing.
7.2 Relationship. These Terms are not intended to create a partnership, franchise, joint venture, agency, or fiduciary or employment relationship. Neither party may bind the other party or act in a manner that expresses or implies a relationship other than that of independent contractor.
7.3 No waiver. Our failure to enforce any provision of the applicable Agreement shall not be construed as a waiver of that provision.
7.4 Severance. If any provision of the applicable Agreement is held unlawful or otherwise ineffective, in whole or in part, by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect, and the provision shall be modified, or the Agreement interpreted, to the maximum extent permitted to effectuate the original intent and purpose of the parties.
7.5 Remedies. Unless stated otherwise, all remedies provided for in the applicable Agreement shall be cumulative and in addition to, and not in lieu of, any other remedies available to either party at law, in equity, or otherwise.
7.6 Entire agreement. The applicable Agreement constitutes the parties’ entire agreement relating to its subject matter. It cancels and supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations, and warranties, and prevails over any conflicting or additional terms contained in any quote, purchase order, acknowledgment, or other communication between the parties relating to its subject matter during its term.
7.7 Marketing and public relations. We reserve the right to publicize our Work in marketing and public relations materials. If we perform website development services for you, you authorize us to include our logo, meta tags, and reciprocal links on your website.
7.8 Binding effect. The applicable Agreement shall be binding upon, and shall inure to the benefit of, the parties and their respective successors and assigns.
7.9 Jurisdiction and law. Any claim arising under or relating to any Agreement shall be governed by the internal substantive laws of the State of Illinois, without regard to its conflict of laws rules. You consent to the exclusive jurisdiction and venue of Cook County, Illinois or the U.S. District Court for the Northern District of Illinois. The parties expressly waive any right to a jury trial and agree that any proceeding hereunder will be tried by a judge without a jury.
7.10 Notice. All written notices must be delivered in person or by means evidenced by a delivery receipt or acknowledgment, and will be effective upon receipt. Notices communicated by electronic mail or facsimile will be deemed to be written.
7.11 Export laws. Deliverables may be subject to export controls or trade laws of the United States and other countries. You will comply with all such laws and obtain all licenses to export, re-export, or import as may be required.
7.12 Assignment. Simple Machines may assign any Agreement to any affiliate, wholly owned subsidiary, or successor or owner of all or substantially all of its business or assets. No Agreement may otherwise be assigned, in whole or in part, without our prior written consent, and any such assignment shall be void and of no effect.
7.13 Attorneys’ fees. If any proceeding or lawsuit is brought by us against you in connection with any Agreement, and we are the prevailing party, we shall be entitled to receive from you all of our costs and expenses incurred, as well as reasonable attorneys’ fees.
7.14 Effect of expiration or termination. Upon the expiration or termination of any Agreement for any reason, each party shall be released from all obligations to the other arising after the date of expiration or termination, except for obligations and responsibilities that by their nature survive any such termination.
To use Simple Machines Hosted Services, you:
If you post content on a Simple Machines Hosted Service, you:
9.1 These Terms are subject to change at any time, by our revising them on our website or otherwise providing you notice of the change.