Account Manager. Service Provider shall: (i) appoint an individual to serve as the primary contact with respect to the Services (the “Account Manager”); and (ii) engage employees and contractors to perform the Services (each and together, “Service Provider Personnel”). Service Provider may change the Account Manager upon written notice to Client (e-mail is sufficient). For the avoidance of doubt, nothing contained in this Agreement or a SOW shall create any contractual or legal relationship between Client and Service Provider Personnel. Service Provider shall submit to Client for approval each deliverable hereunder in connection with the Services (each a “Submission”). Within five (5) business days after transmission of a Submission by Service Provider to Client, Client shall provide Service Provider with written approval or disapproval of such Submission (e-mail or text message is sufficient). If Client does not respond within such five (5) business day period, the Submission will be deemed approved by Client, and Service Provider may, in its sole discretion, either continue providing the Services or suspend the Services pending reasonable correspondence from Client. Any such suspension may, at Service Provider’s sole election, toll the time of performance by Service Provider for any pending Services without regard to anything to the contrary stated in a SOW or this Agreement.
Client’s Responsibilities. Client shall appoint and, as necessary, timely replace, a Client employee or executive as the contact with respect to this Agreement and who will have the authority to act on behalf of Client (the “Client Contract Manager”). Client shall timely provide copies of or access to Client’s information, documents, samples, products, services, or other materials (collectively, “Client Materials”) as Service Provider may reasonably request. Client shall respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform the Services. Client shall take all steps necessary, including obtaining any required licenses or consents and providing Service Provider with necessary access, to prevent Client-caused delays in Service Provider’s provision of the Services. Client shall comply with all applicable federal, state, and local laws, ordinances, regulations, and orders that are applicable to this Agreement.
Term. The term of this Agreement commences on the Effective Date and continues until there are no Services remaining to be performed by Service Provider under any duly executed SOW, unless earlier terminated in accordance with the terms of this Agreement (the “Term”).
Expenses; Client shall reimburse Service Provider for all actual and reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services (“Reimbursable Expenses”). Service Provider shall not incur any Reimbursable Expense in excess of $500 in connection with any Services or SOW without Client’s prior written approval (e-mail is sufficient). Client will be on a month to month contract thereafter.
Payment. Unless otherwise provided in a SOW, and except with respect to Termination Payments (as defined below), Service Provider shall invoice Client on the twenty fourth day of each month for Fees, any Additional Service Fees, and any Reimbursable Expenses on a Net 15 basis (each an “Invoice”). Any portion of any Fees, Additional Service Fees, Termination Payments, or Reimbursable Expenses that is not paid within ten (10) days of the date such amounts became due shall accrue interest from the date such amounts became due until the date of payment thereof, at the rate of the lesser of: (i) 1.5% per month; and (ii) the maximum rate permitted by Applicable Law. Client agrees to reimburse Service Provider for all costs incurred by Service Provider (including reasonable outside attorneys’ fees) in connection with enforcement of this Section 5. Each Party shall be responsible for all of such Party’s taxes and government fees imposed as a result of the transactions contemplated by this Agreement. Client shall notify Service Provider in writing of any dispute arising in connection with any Invoice (e-mail is sufficient), which notice shall include comprehensive substantiating documentation, within fifteen (15) business days from transmission of an Invoice to Client. Client will be deemed to have accepted all Invoices for which Service Provider does not receive timely notification of a dispute.
Intellectual Property Rights; Ownership. Subject to the conditions contained herein, all products, processes, ideas, improvements, designs, writings, methods, compilations, research, analyses, trade secrets, knowhow and other works conceived, created or developed, whether alone or with others and whether or not protectable, in whole or in part by Service Provider or any of Service Provider’s employees, contractors or agents in connection with the Services or otherwise in the course of the relationship hereunder (collectively, the “Works” and each a “Work”), will be the sole and exclusive property of Client if: (a) all Fees, Additional Service Fees, and Reimbursable Expenses are timely remitted to Service Provider; and (b) Client is not in uncured breach of this Agreement or Applicable Law (as defined below). Al Works are and will be considered “work made for hire” under the U.S. Copyright Act, as amended, or under similar provisions of law in any foreign and state jurisdiction in which Service Provider resides when performing the Services. If any Work or portion thereof does not qualify as a “work made for hire,” Service Provider agrees to assign, unconditionally and irrevocably to Client, all of its right, title and interest in and to the Works and in and to all copyrights, trademarks, trade secrets, know-how and other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”) relating to the Works (the “Services Intellectual Property Rights”), and, to the extent permitted by Applicable Law, Service Provider (on Service Provider’s own behalf and on behalf of Service Provider’s employees, contractors and agents) waives any moral rights relating thereto. Upon Client’s reasonable request, Service Provider will reasonably assist Client and its agents in its efforts to perfect, preserve and protect title and ownership in the Works. All costs associated with such documents, applications or registrations shall be borne by Client. The “Works” shall include, without limitation, all copy, blogs, storyboards, concepts, ideas, inventions, discoveries, domain names, logos, taglines, slogans, website design, style, content, structure and look and feel, internet portals, videos, research, studies, reports, presentations and proposals, artwork, videos, music, lyrics, photographs, graphic materials, audiovisual works, and telephone numbers for use by Client’s consumers. For the avoidance of doubt, Client shall have no rights in or to the Works or the Services Intellectual Property Rights unless and until all Fees, Additional Services Fees, and Reimbursable Expenses due to Service Provider pursuant to this Agreement are remitted in accordance with the terms contained herein. Notwithstanding anything herein to the contrary, Client’s ownership of the Works shall be subject to: (i) the rights of third parties whose materials or services are contained in the Works with Client’s prior knowledge and written approval and used under a license or other permission granted to Service Provider or Client (“Third Party Materials”); and (ii) all materials owned by Service Provider prior to, or independent from, the performance of the Services under this Agreement, and all methodologies, software, applications, or processes used, created, or developed by Service Provider in the general conduct of its business, excluding those developed specifically for Client or at Client’s request or funded by Client pursuant to this Agreement (collectively, “Service Provider Materials”). Service Provider hereby grants Client a royalty-free, perpetual, worldwide license to any Service Provider Materials only to the extent incorporated in, combined with, or otherwise necessary for the use of the Works. Client grants Service Provider a limited, non-transferable, non-sublicensable, non-exclusive, royalty-free license during the Term to use, reproduce and display, solely to the extent necessary to complete the Services: (i) the Intellectual Property Rights of Client (“Client’s Intellectual Property Rights”); and (ii) Client’s websites and URLs.
Representations, Warranties, and Certain Covenants. Client represents and warrants that: (i) Client is an entity duly organized or incorporated, as applicable, and validly existing and in good standing under the laws of its state of organization or incorporation; (ii) Client has all requisite power and authority to execute and deliver this Agreement and to carry out the transactions contemplated hereby; (iii) Client owns all right, title and interest in and to Client Materials and Client’s Intellectual Property Rights; (iv) Client has not entered (and will not enter) into any other agreement or understanding that will prevent or impair the performance of Client’s obligations herein; (v) all Client Materials and Client’s Intellectual Property Rights are original to Client; (vi) this Agreement constitutes the legal, valid and binding obligation of Client and is enforceable against Client in accordance with its terms; (vii) Client will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority, governing body or jurisdiction applicable this Agreement (“Applicable Laws”) whether those Applicable Laws are now in effect or later enacted; and (viii) and Client shall not disclose or otherwise communicate to any third party, the terms of this Agreement or any information, documents or records that Client has had or will have access to concerning Service Provider, which in each case shall remain confidential, except as required to: (a) fulfill Client’s obligations hereunder; or (b) enforce or defend any dispute in connection with this Agreement pursuant to the terms herein. Service Provider represents and warrants to Client that: (i) Service Provider is an entity duly organized and validly existing and in good standing under the laws of the State of California; (ii) Service Provider has all requisite power and authority to execute and deliver this Agreement and to carry out the transactions contemplated hereby; and (iii) this Agreement constitutes the legal, valid and binding obligation of Service Provider and is enforceable against Service Provider in accordance with its terms. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT: (I) NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED; AND (II) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS PROVIDED IN THIS AGREEMENT.
Indemnification. Service Provider shall defend, indemnify and hold harmless Client for, from and against all claims, demands, suits, criminal or civil actions or similar proceedings alleged by a third party (including enforcement proceedings by any governmental authority), and all liabilities, damages, fines, penalties, costs or expenses that any Party might incur, become responsible for, or pay out for any reason, related to this Agreement (“Claim(s)”) with respect to any legal action in which Client is named as a defendant (each, an “Action”) arising out of or in connection with any material breach of any representation, warranty, agreement or covenant made by Service Provider hereunder; provided, that such indemnification will apply only to the extent that any such Claim is not based, in any part, upon the negligence or misconduct of Client, or any breach by Client of this Agreement, including, without limitation, a breach of Client’s representations and warranties. With respect to such indemnity, Service Provider shall control the defense and settlement of any claim, action, suit or controversy with counsel selected by Service Provider. This indemnification obligation shall survive the expiration of the Term or the termination of this Agreement. Client shall defend, indemnify and hold harmless Service Provider and its subsidiaries and affiliates and their respective successors and assigns, and each of their members, managers, shareholders, officers, employees, directors and agents (each a “SP Indemnitee”) for, from and against all Claims, arising out of or in connection with: (i) any material breach of any representation, warranty, agreement or covenant made by Client hereunder; or (ii) any negligence or misconduct by Client. This indemnification obligation shall survive the expiration of the Term or the termination of this Agreement. Client further agrees to reimburse each SP Indemnitee promptly for any and all costs, liabilities, expenses, fees, fines, professional fees (including outside attorneys’ fees) and other amounts paid or incurred by such SP Indemnitee in connection with the foregoing indemnity. The defense and indemnification obligations of Service Provider in herein shall only be available to Client if Client shall: (i) give prompt written notice to Service Provider of a Claim (in no event later than ten (10) days following Client’s receipt of written information regarding a Claim); (ii) take no independent action in connection with such Claim; (iii) cooperate with Service Provider in the defense against such Claim; and (iv) give over to, and provide Service Provider with, control over all activity in connection with the defense of such Claim.
Confidentiality. Each Party agrees that during the Term it may acquire or develop confidential information relating to the other Party and its business, including but not limited to trade secrets, know-how, production specifications or quantities, pricing, profits, marketing, advertising or promotional strategies, market research, revenues, sales data, business plans or models, financial projections, competitive analyses, customer lists, purchasing and sales records, product performance, manuals, computer programs, and computer databases, whether developed by the Parties, or furnished by a Party to the other Party, and the terms and existence of this Agreement (“Confidential Information”). With respect to the other Party’s Confidential Information, the receiving Party agrees that during the Term and at all times thereafter it shall maintain the Confidential Information in the highest confidence that recipient reserves for its own Confidential Information and shall not use, commercialize, publish, publicize, report or disclose such Confidential Information to any other party without the prior written consent of the disclosing Party, except to its own employees, affiliates, officers, directors, shareholders, attorneys, accountants and financial advisors (collectively, “Representatives”) on a need-to-know basis and only if such Representatives are bound by a written confidentiality agreement containing terms at least as protective of the Confidential Information as the terms set forth herein or to enforce or defend any dispute in connection with this Agreement pursuant to the terms herein. Any use or disclosure of Confidential Information in violation of this Agreement shall entitle the disclosing Party to injunctive relief restraining such unauthorized use or disclosure, together with damages, costs and reasonable outside attorney’s fees.
Termination. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party: (i) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within ten (10) days after receipt of written notice of such breach that contains sufficient detail of the alleged breach; or (ii) becomes insolvent or is generally unable to pay its debts as they become due; files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; makes or seeks to make a general assignment for the benefit of its creditors; applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or is dissolved or liquidated. Notwithstanding anything to the contrary contained herein, Service Provider may terminate this Agreement, effective upon written notice to Client if: (i) there is a failure by Client to make a payment when due hereunder that continues for fifteen (15) days after Client’s receipt of written notice of such nonpayment (e-mail is sufficient); or (ii) Client fails three (3) or more times in a six (6) month period to make a payment when due hereunder. In the event this Agreement is terminated pursuant to this Section 10: (a) upon Service Provider’s request, Client shall immediately remove all Works and any other results and proceeds of the Services (collectively, the “Work Product”) from Client’s social media channels, website, communications materials, branding, packaging, and advertisements and cease all use of the Work Product; (b) Client will return to Service Provider all Confidential Information received by Client in connection with this Agreement, and all copies or reproductions thereof; and (c) Client shall pay to Service Provider a termination payment in an amount equal to the greater of: (1) seventy five percent (75%) of the Fees, or (2) a pro-rated portion of the Fees in proportion to the Services already provided to Client at the time of termination (the “Termination Payment”). The Termination Payment and remittance of all outstanding Reimbursable Expenses shall be made to Service Provider within ten (10) days of any termination pursuant to this Section 10.
Non-Disparagement. Both during and after the Term, Client shall not disparage or encourage or induce others to disparage Service Provider or any of its respective past and present officers, shareholders, directors, members, managers, partners, employees, agents, and attorneys and each of their predecessors, successors and assigns. Further, Client shall not, without Service Provider’s prior written consent, give any interviews (whether oral or written), write or prepare or assist in the preparation of any books or articles, or make any remarks of any kind, regardless of medium, which interviews, books, articles or remarks concern or discuss Service Provider or any of its respective past and present officers, shareholders, directors, members, managers, partners, employees, agents, and attorneys and each of their predecessors, successors and assigns, or any services performed by Service Provider during the Term. THE FOREGOING EXPRESSLY INCLUDES, WITHOUT LIMITATION, COMMUNICATIONS APPEARING ON THE INTERNET VIA BLOGGING OR SOCIAL NETWORKING SITES, INCLUDING, WITHOUT LIMITATION, TIK TOK, FACEBOOK, INSTAGRAM AND TWITTER. Governing Law, Remedies. This Agreement will be governed by and construed in accordance with the internal substantive laws of the State of California, without giving effect to the principles of conflicts of laws thereof. Service Provider reserves all its rights and remedies at law and in equity if Client should breach this Agreement.
Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments of the Fees, Additional Service Fees, and Reimbursement Expenses to Service Provider through the effective date of such Force Majeure Event (as defined below)), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (the “Impacted Party”) reasonable control, including, without limitation, the following force majeure events: elements of nature or acts of God; seizures; flood, fire, earthquake, pandemics, epidemics, or explosion; war, invasion, insurrections; hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; nuclear reaction or radiation or radioactive contamination; government order, law, regulation, ruling, action, or closings; embargoes or blockades in effect on or after the Effective Date; national or regional emergency; strikes, labor stoppages or slowdowns, or other industrial disturbances; failure of a utility provider; digital or social media blackout; third party delivery or transportation delays or any other delivery or transportation interruption or problem; lack of the usual means of transportation; and other events beyond the reasonable control of the Impacted Party (a “Force Majeure Event”). A Party may terminate this Agreement upon written notice to the other Party if a Force Majeure Event exceeds three (3) consecutive months in duration during the Term.
Arbitration. Should any dispute arise in connection with the interpretation, implementation or violation of any of the terms hereof, or with respect to the Parties’ obligations hereunder, the Parties agree that such dispute shall be settled by arbitration before an arbitrator pursuant to the rules of JAMS Streamlined (for claims under $250,000) or the JAMS Comprehensive (for claims over $250,000) Arbitration Rules and Procedures, conducted with a single arbitrator knowledgeable of both Contract and Intellectual Property Law. Any decision rendered by the arbitrator shall be conclusive and binding upon the Parties and there shall be no right of appeal therefrom in any forum. Any arbitration hereunder shall be conducted in New York, New York, and the arbitrator shall apply the laws of the State of New York, without giving effect to its principles of conflict of laws. The Parties to such arbitration shall each bear their own costs and expenses related thereto and shall share the expense of the arbitrators equally. EACH PARTY UNDERSTANDS THAT BY AGREEING TO ARBITRATION IN THE EVENT OF A DISPUTE IN CONNECTION WITH THIS AGREEMENT, EACH PARTY IS EXPRESSLY WAIVING SUCH PARTY’S RIGHT TO REQUEST A TRIAL BY JURY IN A COURT OF LAW. If, notwithstanding the arbitration provisions of this Agreement, a Party shall succeed in bringing an action relating to any matter or dispute in connection with this Agreement in a court of law, then the exclusive venue for resolution of such matter or dispute shall be the State or Federal Courts located in Los Angeles, California. Each Party agrees that personal jurisdiction over such Party may be effected by service of process by personal delivery or by a nationally recognized overnight courier addressed, and that when so made shall be as if served upon such Party personally.
Relationship of the Parties. Nothing herein shall create or be construed as creating any partnership, employer-employee, joint venture, or agency relationship between the Parties. Neither Party shall have any authority to bind the other or to act as an agent for the other unless expressly authorized in writing.
Survival. Any term or section that would naturally survive the Term or the termination of this Agreement shall so survive.
Limitation of Liability. EXCEPT WITH RESPECT TO THE PARTIES’ LIABILITY FOR INDEMNIFICATION, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Miscellaneous. The section headings in this Agreement are for convenience only and are not intended to be a complete or accurate summary of the contents of any section, and they shall not be used in construing this Agreement or any part hereof. Client’s rights hereunder may not be assigned, and Client’s duties may not be delegated without Service Provider’s prior written consent. Service Provider may freely assign this Agreement, its rights or delegate its obligations under this Agreement, without the consent of Client, to any person, corporation, firm, joint venture, partnership, limited liability company, trust, or unincorporated organization that acquires substantially all of Service Provider’s assets. Subject to the foregoing, this Agreement is binding upon and shall insure to the benefit of Client’s and Service Provider’s respective successors and assigns. Neither of the Parties has made any representations, statements, warranties or other agreements other than those expressed herein. This Agreement embodies the entire understanding of the Parties with respect to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, or understandings, written or oral, between Client and Service Provider. This Agreement may be amended, modified or canceled only by a written agreement signed by the Parties. Except as otherwise provided in this Agreement, all notices and other communications hereunder shall be in writing and shall be deemed given when delivered personally or if delivered by overnight delivery when delivery is confirmed by the delivery service to the addresses specified in the Basic Terms or a SOW, or at such other address as either Party may supply by written notice delivered in accordance herewith. If any provision of this Agreement, or portion thereof, shall be held invalid or unenforceable by a court or arbitrator of competent jurisdiction, such invalidity or unenforceability shall attach only to such provision or portion thereof, and shall not in any manner affect or render invalid or unenforceable any other provision of this Agreement or portion thereof, and this Agreement shall be carried out as if any such invalid or unenforceable provision or portion thereof were not contained herein. No waiver by a Party of a breach or default hereunder by the other Party shall be considered valid unless in writing by such first Party, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or any other nature. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party.
