WHEREAS, Contractor provides marketing services, and Client, may from time to time, desire Contractor to supply Client with such services;
NOW THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, the parties have agreed and do agree as follows:
1.1 The undersigned representative of Client has the authority to enter into this Agreement on behalf of Client. Client agrees to cooperate and to provide Contractor with everything needed to complete the Services as, when and in the format requested by Contractor.
Contractor has the experience and ability to do everything Contractor agreed to for Client and will do it all in a professional and timely manner. Contractor will endeavor to meet every deadline that’s set and to meet the expectation for Services to the best of its abilities.
2. Warranties, Disclaimers
2.1 Contractor warrants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any obligation Contractor may have to others; (ii) none of the Services or Inventions or any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Contractor); (iii) Contractor has the full right to provide Client with the assignments and rights provided for herein; (iv) Contractor shall comply with all applicable laws in the course of performing the Services and (v) if Contractor’s work requires a license, Contractor has obtained that license and the license is in full force and effect.
2.2 The Service and the associated materials and content are provided on an “as is” and “as available” basis. Except as otherwise expressly provided in this Section, Contractor, its parent, subsidiary and other affiliated companies, and their respective officers, directors, employees, agents and other representatives (collectively, the “Contractor Parties”), expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability and fitness for a purpose. Without limiting the generality of the foregoing, the Contractor Parties make no warranty that: (i) the Service will meet your requirements; (ii) the Service will be uninterrupted, timely, secure, or error-free; (iii) information that may be obtained via the Service will be accurate or reliable; (iv) the quality of any and all products, services, information or other material, including all merchandise, goods and services, obtained or purchased by you directly or indirectly through the Service will meet your expectations or needs; and (v) any errors in the Service will be corrected.
3. Confidentiality & Non-Disclosure.
3.1 For the purposes of this Agreement either party may be the “Disclosing Party” or the “Receiving Party” as the circumstances may indicate.
3.2 Confidential Information. “Confidential Information” shall mean any and all information, proprietary and/or maintained in confidence by the Disclosing Party, including but not limited to, any information relating to the Disclosing Party’s ideas, concepts, techniques, inventions, know how (including patents, copyrights, and trade secrets), sketches, drawings, models, processes, materials, operations, algorithms, software programs, source code, experimental work, research and development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, vendor lists, contact lists, business forecasts, sales and merchandising, and marketing plans, inventions and information, disclosed by Disclosing Party or obtained by Receiving Party either directly or indirectly, in writing, orally or by inspection of tangible objects or by the viewing of product demonstrations (including without limitation documents, prototypes and proposals), which is designated or described by the Disclosing Party as “Confidential,” “Proprietary” or some similar designation, and/or which should reasonably be understood by the Receiving Party, or any of Receiving Party’s employees, directors, representatives, shareholders, or agents (collectively the “Receiving Party Representatives”) because of the circumstances of disclosure or the nature of the information itself to be confidential or proprietary to the Disclosing Party, regardless of whether obtained before, on or after the date of this agreement. “Confidential Information” also includes proprietary or confidential information of any third party who may disclose such information to the Receiving Party on behalf of the Disclosing Party.
3.3 Non-disclosure and Non-use. Receiving Party agrees to use the Confidential Information for the sole purpose of providing or receiving the Services. Receiving Party agrees that neither it nor any of Receiving Party Representatives will use for Receiving Party’s own benefit or in any way disclose any Confidential Information to any person, firm or business, except for the sole purpose set forth in this Agreement or for any other purpose the Disclosing Party may hereafter authorize in writing. Receiving Party shall treat all Confidential Information with the same degree of care as Receiving Party accords to Receiving Party’s own Confidential Information, but in no case less than reasonable care. Receiving Party agrees to disclose Confidential Information only to those of such Receiving Party’s employees who need to know such information, determined in Receiving Party’s sole discretion, and Receiving Party certifies that such Receiving Party’s employees have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to such Receiving Party under this Agreement, such agreement to be provided to Disclosing Party upon request. Receiving Party shall not make any copies of the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent. Receiving Party shall not reverse engineer, disassemble or decompile any materials or objects which embody the Disclosing Party’s Confidential Information. Receiving Party shall immediately give notice to the Company of any unauthorized use or disclosure of Confidential Information. Receiving Party agrees to assist the Company in remedying any such unauthorized use or disclosure of Confidential Information.
3.4 Exceptions. The obligations of Receiving Party with respect to any portion of the Confidential Information shall not apply to such portion that Receiving Party can document: (a) was in the public domain at or subsequent to the time such portion was communicated to Receiving Party through no fault of Receiving Party, (b) was rightfully in Receiving Party’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to Receiving Party, (c) was developed by employees or agents of Receiving Party independently of and without reference to any information communicated to Receiving Party by Disclosing Party, or (d) is requested or legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, or similar processes), or is required by a regulatory body, to be disclosed. In the event that Receiving Party is required to disclose any Confidential Information in accordance with subsection 4.03(d), Receiving Party will notify Disclosing Party promptly so that Disclosing Party may seek a protective order or other appropriate remedy. In the event that no such protective order is obtained before such Confidential Information or other information is required to be disclosed, the Receiving Party or its applicable representative, as the case may be, will furnish only that portion of such Confidential Information or other information which it is advised by its legal advisers is required to be disclosed. In addition, to the extent legally permissible, Receiving Party will provide Disclosing Party, in advance of any such disclosure, with copies of any such Confidential Information or other information that Receiving Party intends to disclose and will reasonably cooperate with Disclosing Party to the extent Disclosing Party may seek to limit such disclosure.
4. Ownership and Licenses
4.1 Contractor agrees that the deliverables and materials developed pursuant to this Agreement (including, without limitation, all presentations, writings, ideas, concepts, designs, text, plans, and other materials that Contractor conceives and develops pursuant to this Agreement, including all materials incorporated therein whether such materials were conceived or created by Contractor individually or jointly, on or off the premises of Client, or during or after working time) shall be treated as if the development of such deliverable constitutes a “work for hire” and shall be owned by Client upon payment of all fees due to Contractor pursuant to this Agreement.
4.2 In the event that any such material is considered not to be a “work made for hire,” Contractor hereby assigns all ownership (whether represented or not by a registered patent, copyright, trade secret) and other proprietary or rights, title and interest in such deliverables and materials to Client, and agrees to execute such documents as Client may reasonably request, in order to assist Client in obtaining and protecting such rights.
4.3 Contractor agrees that Contractor has no interest in any materials that Contractor submits to Client, including, without limitation, any security interest therein, and hereby releases to Client any interest therein (if any) which may be created by operation of law. Except as otherwise agreed to in writing and as necessary in the performance of this Agreement, Contractor shall have no rights to license, sell or use the deliverables or materials developed under this Agreement, or any portion thereof.
5.1 Contractor agrees that during the period in which it is providing Services to Client, and for one year thereafter, Contractor will not encourage or solicit any employee, vendor, client or contractor of Client, that Contractor became aware of as a result of performing services under this Agreement, to leave Client for any reason,
6. Relationship of Parties
6.1 Nothing contained in this Agreement shall be construed to create a partnership, joint or co-venture, agency, or employment relationship between Contractor and Client. Both Parties agree that Contractor is, and at all times during this Agreement shall remain, an independent contractor.
7. Term & Termination
7.1 Either Party may terminate this Agreement at any time, with or without cause, upon 7 days written notice.
7.2 Either Party also may at any time terminate the Agreement immediately if: (i) the other party commits a breach of this Agreement and such party does not cure a breach within 5 days of written notice from the non-breaching party of such breach.
7.3 If this Agreement is terminated earlier by Client without cause, Client agrees to pay Contractor any and all sums which are due and payable for: (i) services provided as of the date of termination; and (ii) expenses already incurred, including those from documented non-cancelable commitments. Contractor agrees to use the best efforts to minimize such costs and expenses.
7.4 Termination for any reason shall not affect the rights granted to Client by Contractor hereunder. Upon termination, Client shall pay to Contractor all undisputed amounts due and payable. If upon termination Client has not paid undisputed fees owed for the material, deliverables or Services provided by Contractor as of the date of termination, Client agrees not to use any such material or the product of such Service, until Client has paid Contractor in full. Any provisions or clause in this Contract that, by its language or context, implies its survival shall survive any termination or expiration of this Agreement. Notwithstanding anything to the contrary in this Agreement, Contractor shall retain a perfected security interest in the deliverable or material until Client has made payment in full for all undisputed amounts as of the termination date. Contractor hereby agrees to release and waive its security interest in the deliverable and material upon receipt of full payment for all undisputed amounts.
8. Payment Terms
8.1 Client understands the importance of paying independent contractors in a timely manner and wants to maintain a positive working relationship with Contractor to keep the project moving forward.
8.2 Payments for each invoice delivered by Contractor to Client are due within 15 days of receipt. In case of overdue payments, Contractor reserves the right to stop work until payment is received.
9. Late Payment
9.1. In the event an invoice is not paid on time, to the maximum extent allowable by law, Contractor will charge a late payment fee of 1.50% per month on any overdue and unpaid balance not in dispute.
9.2 Contractor’s acceptance of such service charges does not waive its rights to any remedies for Client’s breach of this Agreement. All payment obligations are non-cancelable and fees paid are non- refundable.
10 Expense Reimbursement. Client shall reimburse all expenses that are reasonable and that have been authorized in writing by Client in advance; payable within 15 days of itemized invoice.
11. Changes. Any material changes to the Services, including work to be performed and related fees must be approved by the prior written consent of both parties.
12. Indemnification and Limitation of Liability
12.1 Direct Damages. To the extent permitted by applicable law, the total cumulative liability of either party for any breach or default under this agreement (including, without limitation, any breach of any warranty given by company under this agreement) shall be limited to the amount of such party’s direct damages resulting from such breach or default, not to exceed the amounts paid or payable to company by customer with respect to (ii) out of any claim that the materials or deliverables, or any portion thereof, in fact infringes upon or violate any proprietary rights of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach or alleged breach of any of Contractor’s representations, warranties or agreements herein.
12.2 Indirect Damages. To the extent permitted by applicable law, except for liability arising from breach of the confidentiality obligation set forth herein, in no event shall either party and company’s licensors have any liability to the other party for any special, indirect, incidental, punitive, or consequential losses or damages (including, without limitation, loss of revenue or profits or failure to realize savings or other benefits) arising from or related to a breach of this agreement or the operation or use of the software, the service, the maintenance and support services, or the professional services, even if such party has been advised of the possibility of such losses or damages.
13. Limitation of Action. Except for actions for nonpayment of fees hereunder or a breach of the Confidentiality terms hereunder, no action (regardless of form) arising out of this Agreement may be commenced by either party more than one (1) year after the cause of action has accrued.
14. Right to Authorship Credit
14.1 Both Parties agree that when asked, Client must properly identify Contractor as the creator of the deliverables. Client does not have a proactive duty to display Contractor’s name together with the deliverables, but Client may not seek to mislead others that the deliverables were created by anyone other than Contractor.
14.2 Client hereby agrees Contractor may use the work product as part of Contractors portfolio and websites, galleries and other media solely for the purpose of showcasing Contractors work but not for any other purpose.
14.2 Contractor will not publish any confidential or non-public work without Client’s prior written consent.
15. Arbitration. Any controversy, claim, suit, injury or damage arising from or in any way related to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association then in effect and before a single arbitrator panel in or near San Bernardino County, California. Either party may seek any interim or preliminary relief from a court of competent jurisdiction necessary to protect its rights pending the completion of arbitration. Each party shall assume its own costs of arbitration.
16. Governing Law, Venue. This Agreement shall in all respects be construed in accordance with and governed by the laws of the State of California (“Jurisdiction”) without regard to its conflict of law principles. Both Parties consent to the exercise of personal jurisdiction by the state and federal courts in this Jurisdiction. IN ANY CLAIM, ACTION OR PROCEEDING TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THE TERMS OF THIS AGREEMENT, THE PARTIES HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY.
17. Force Majeure. No failure or omission by a party in the performance of any obligation under this Agreement shall be deemed a breach of this Agreement or create any liability if such failure or omission shall arise from any cause or causes beyond the reasonable control of such party which cannot be overcome through that party’s reasonable diligence, e.g., strikes, riots, war, acts of terrorism, acts of God, severe illness, invasion, fire, explosion, floods and acts of government or governmental agencies or instrumentalities.
18. Notices. Any notices to either Party made pursuant to this Agreement shall be made and sent (i) via US mail or a nationally recognized carrier to the other Party’s address on file; (ii) or via e-mail to the other Party’s designated representative. Each Party shall have an independent obligation to provide and update, as necessary, the mail and e-mail address on file for such notices. Notices sent by e-mail shall be deemed effective once sent if no error or “bounce back” has been received within twenty-four (24) hours of submission.
19. Appropriate Conduct. Client and Contractor will seek to maintain a professional relationship that is free from harassment of any kind and from any other offensive or disrespectful conduct. If at any time during the term of this Agreement Contractor believes that he/she has been subjected to harassing behavior on the part of Client or Client’s staff, Contractor will notify Client immediately and demand that appropriate actions will be taken to correct the matter. In the event that the reported behavior continues following Contractor’s second notice, such behavior will constitute a breach of this Agreement and entitle Contractor to terminate this Agreement in accordance with the Agreement’s Term and Termination Clause, and be paid in full for the ordered project or for the planned monthly service hours, as applicable, without limiting any other right or remedy available to Contractor by law.
20. Miscellaneous. The section and subsection headings used in this Agreement are for convenience only and will not be used in interpreting this Agreement. Both parties have had the opportunity to review this Agreement and neither party will be deemed the drafter of this Agreement for the purposes of interpreting any ambiguity in this Agreement. The parties agree that this Agreement may be signed by manual or
facsimile signatures and in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. In the event that any provision of this Agreement will be determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted, that specific provision will be eliminated so that this Agreement will otherwise remain in full force and effect and enforceable. The failure of a Party to insist, in any one or more instances, upon strict performance of any covenant, term or provision of this Agreement shall not be construed as a waiver or relinquishment thereof, but the same shall continue and remain in full force and effect, notwithstanding any law, usage or custom to the contrary. No waiver by a Party of any provision hereof shall be deemed to have been made unless expressed in writing and signed by the waiving party.
21. Entire Contract. This Agreement, along with this Attachment B, and any exhibits, schedules or attachments, between the Parties supersedes any previous arrangements, oral or written, and may not be modified in any respect except by a future written agreement signed by both Parties.