This Service Agreement is made by and between Client, as indicated on the Service Proposal and Order (“Service Order”) to which these terms and conditions are attached, and ASUN DIGITAL, LLC (hereinafter referred to as “Contractor”). The Service Order, the following terms and conditions to which the Service Order is subject and Attachments, taken together, comprise the “Agreement.” For purposes of this Agreement, “Attachments” shall include attachments, appendices and exhibits.
Whereas, Client desires to engage Contractor to provide design, media, marketing and media buying services as described in the Service Order (collectively, the “Services”) and Contractor desires to provide the Services to Client;
Therefore, the Parties agree as follows:
- “Effective Date” means the commencement of this Agreement and shall be the date on which this Agreement has been executed by all Parties.
- “Media” includes and any all forms of electronic, print, visual or audio communications.
- “Party” or “Parties” means, as the context is appropriate, an individual signatory to this Agreement or multiple signatories to this Agreement.
- “Production Costs” means costs incurred to third parties for photography, special effects or other services Contractor does not provide.
- “Term” shall mean the period during which this Agreement is effective as between the Parties.
- “Work Product” means all designs, copy, programs, trademarks, service marks, slogans, photographs, presentations, materials, film, music, transcriptions, or other creative materials that may be protected as intellectual property created by Contractor in connection with this Agreement.
- The initial term (“Initial Term”) of this Agreement shall commence on the Effective Date and shall continue for the period indicated in the Service Order.
- The Initial Term shall be renewed (the “Renewal Term”) on the same terms and conditions as stated herein, except there will not be an additional Initiation Fee, and subsequent Renewal Terms shall be renewed automatically in the absence of notice by either Party that this Agreement shall not renew; such notice to be received by the other Party not less than ninety (90) days prior to the end of the then-current Term written notice (“Notice Period”).
3) Services and Authority
- Client engages Agency as Client’s non-exclusive advertising agency in connection with the Services.
- In the event Client requests Contractor to perform services additional to those provided in the Service Order or similar to those in The Service Order but in a different or greater quantity or capacity, Contractor and Client will negotiate in good faith with respect to the terms, conditions and compensation for such additional services. Any agreement for additional services will be set forth in writing and considered an addendum to this Agreement.
- Unless expressly indicated in writing by Contractor to Client and subject to Client’s prior written consent, all content provided by Contractor within the Services shall be original content from Contractor or, subject to Client’s prior written approval, subcontracted.
- Client hereby authorizes Contractor to purchase, on Client’s behalf, Media consistent with the plan described in The Service Order and subject to Client’s approval; such Media to be paid for by Client as provided in §5, below.
4) Service Fees
- Client shall pay to Contractor the Fees for the Services as indicated in the Service Order.
- In the event Contractor does not receive full and timely payment of the Fees, Contractor shall have the right to charge 1.25% interest per month, or the maximum allowable by law if less, on any unpaid amounts, plus all costs of collection, including reasonable attorneys’ fees actually incurred by Contractor in connection therewith.
- Subject to Client’s prior written approval, Client shall be solely responsible for expenses associated with the Services including but not limited to:
- Except as expressly included in The Service Order, all purchases of Media, engagement of talent and Production Costs including but not limited to cancellation fees, if cancellation is requested by Client;
- Out-of-pocket costs for materials and supplies;
- Travel, lodging and related expenses if and to the extent requested by Client.
- In the case of Media purchases, Client shall pay for all such purchases directly to the respective medium and shall hold harmless and indemnify Contractor as against any unpaid charges related to Media purchases by Contractor on behalf of Client.
- Notwithstanding the foregoing, Contractor may, at its sole discretion and subject to Client’s consent, bill Client in advance for Media purchases for which Client shall deliver to Contractor monies for the payment of such Media purchases (“Media Deposits”). Contractor shall thereafter pay for such Media purchases from such Media Deposits provided payment for the respective Media purchase has been received by Contractor not less than five (5) business days prior to the last date to cancel such Media purchase without a penalty. If a Media Deposit for a respective Media purchase is not received at least five (5) business days prior to the last date to cancel such Media purchase without a penalty, Contractor may, in its sole and absolute discretion, cancel such Media purchase and Client hereby waives any and all claims against Contractor related to, arising from or based on such cancellation.
- All expenses payable by Client shall be reflected in a statement provided by Contractor to Client, payable upon receipt of such statement.
6) Retained Rights
- Contractor may, subject to notice to Client and Client’s express written approval, license materials from third parties for inclusion in Work Product. In such circumstances, ownership of such licensed materials remains with the licensor and Client’s use of the licensed materials is subject to the agreement between the parties.
- Subject to the preceding section, all Work Product shall be the property of Client provided (1) the respective Work Product had been accepted in writing by Client within twelve (12) months of delivery to Client by Contractor; and (2) Client had paid all Fees and costs associated with such Work Product. Other Work Product shall remain the property of Contractor with no restrictions or prohibitions on its use excepting the use of Client’s trademarks.
- Notwithstanding the foregoing, any element(s) of Work Product, which Work Product was accepted by Client but such element(s) were paid for by Contractor and not reimbursed by Client, shall be the sole property of Contractor; provided, however, Client shall have a perpetual royalty-free license to use such element(s) in the Work Product accepted by Client as provided and designed by Contractor Such license does not grant Client the right to use such element(s) in any other manner, to sell or permit any other party to use such element(s) or to modify the Work Product of which such element(s) is/are a part.
- Client grants Contractor the right to include Work Product and logo of Client in Contractor’s portfolio, resume or other compilation or presentation intended to demonstrate Contractor’s capabilities and client associations.
7) Representations and Warranties
- Contractor represents and warrants:
- It is authorized and licensed to conduct its business as described herein.
- It is authorized to enter into this Agreement and the undersigned is authorized to execute this Agreement on behalf of Contractor.
- All Work Product will be solely original content created by Contractor, its employees, agents and contractors or under its direction, except as expressly approved by Client.
- Client represents and warrants:
- It is authorized and licensed to conduct its business as described herein.
- It is authorized to enter into this Agreement and the undersigned is authorized to execute this Agreement on behalf of Client.
- It waives and releases any claim against Contractor related to, based on or arising from the use of the Work Product, the results of the Work Product and/or any claims based on Client’s modification of the Work Product.
For purposes of this section, Contractor and its owners, principals, officers, employees and agents shall be referred to, collectively, as “Contractor Indemnitees;” and Client and its owners, principals, officers, employees and agents shall be referred to, collectively, as “Client Indemnitees.” Either Contractor Indemnitees or Client Indemnitees may also be referred to as “Indemnified Parties.”
- Contractor agrees to and shall indemnify, defend (with legal counsel reasonably acceptable to Client Indemnitees) and hold Client Indemnitees harmless from and against any and all actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs, expenses, penalties or injury (including reasonable attorneys’ fees and costs of any suit related thereto) suffered or incurred by any of them arising from (a) any misrepresentation by, or breach of any covenant or warranty of, Contractor contained in this Agreement or any exhibit, certificate, or other agreement or instrument furnished or to be furnished by Contractor hereunder; (b) any non-fulfillment of any agreement on the part of Contractor under this Agreement; or (c) any suit, action, proceeding, claim or investigation against Client Indemnitees which arises from or which is based upon or pertaining to Contractor’s acts or omissions including but not limited to claims by or on behalf of a third party of infringement of such third party’s rights in or in connection with artwork, text or photography used in such Work Product.
- Client agrees to and shall indemnify, defend (with legal counsel reasonably acceptable to Contractor Indemnitees) and hold Contractor Indemnitees harmless from and against any and all actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs, expenses, penalties or injury (including reasonable attorneys’ fees and costs of any suit related thereto) suffered or incurred by any of them arising from (a) any misrepresentation by, or breach of any covenant or warranty of, Client contained in this Agreement or any exhibit, certificate, or other agreement or instrument furnished or to be furnished by Client hereunder; (b) any non-fulfillment of any agreement on the part of Client under this Agreement; or (c) any suit, action, proceeding, claim or investigation against Contractor Indemnitees which arises from or which is based upon or pertaining to Client’s acts or omissions including but not limited to facts, claims or representations provided to Contractor for inclusion in Work Product which facts, claims or representations are untrue, unproven, defamatory or infringing on another’s rights, and Work Product of Client which Client modifies.
- If any lawsuit, enforcement action or any attempt to collect on an alleged liability is filed against either Client Indemnitees or Contractor Indemnitees, written notice thereof shall be given to the other Party within ten (10) business days after receipt of notice or other date by which action must be taken; provided, however, that the failure of the Indemnified Parties to give timely notice shall not affect their rights to indemnification hereunder except to the extent that the indemnifying Party demonstrates damage caused by such failure. After such notice, the indemnifying Party shall be entitled, if it so elects, to take control of the defense and investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, at its reasonable cost and expense. The Indemnified Parties shall cooperate in all reasonable respects, at the cost and expense of the indemnifying Party, with the indemnifying Party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising there from. The indemnifying Party shall not, without the prior written consent of the Indemnified Parties, effect any settlement of any proceeding in respect of which they are a party and indemnity has been sought hereunder unless such settlement of a claim, investigation, suit, or other proceeding only involves a remedy for the payment of money by the indemnifying Party and includes an unconditional release of the Indemnified Parties from all liability on claims that are the subject matter of such proceeding.
- If either Party shall have an indemnification, defense and hold harmless obligation, as above provided, and shall fail to assume such obligation, then the Indemnified Parties shall have the right, but not the obligation, to assume and maintain such defense (including reasonable counsel fees and costs of any suit related thereto) and to make any settlement or pay any judgment or verdict as the Indemnified Parties, in its/their sole and absolute discretion, deem necessary or appropriate; such costs of settlement, payment, expense and costs, including reasonable attorneys’ fees, to be reimbursed by the indemnifying Party upon demand by the Indemnified Parties.
9) Confidential Information
- Confidential Information. Each Party (“Receiving Party”) acknowledges that, in connection with this Agreement, the Receiving Party will have access to and/or be given by or on behalf of the other Party (“Disclosing Party”) information which is expressly designated “Confidential” or would be understood by a reasonable person to be confidential (collectively, “Confidential Information”). Confidential Information of a Party shall remain the sole and exclusive property of the Disclosing Party. The Parties agree that even if not so marked, all client lists, know-how, trade secrets and methodologies are Confidential Information of the respective Party.
- Non-Disclosure of Confidential Information. The Receiving Party agrees not to use, disclose, distribute or disseminate, or allow others to use, disclose, distribute or disseminate Confidential Information of the Disclosing Party except as expressly permitted under this Agreement. The Receiving Party shall use at least the same procedures and degree of care that it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information, but in no event less than reasonable care. The Receiving Party agrees to restrict access to such Confidential Information to only those employees or contractors who need such Confidential Information in order for the Receiving Party to exercise its rights or perform its obligations hereunder.
- Non-Disclosure of this Agreement. In addition to the Confidential Information described herein above, the terms of this Agreement are expressly included as Confidential Information of Contractor. Accordingly, Client shall not disclose the specific terms of this Agreement to any third party.
- Exceptions to Confidential Information. The foregoing restrictions will not apply to information that the Receiving Party can demonstrate: (i) was known to the Receiving Party, without restriction, at the time of disclosure to the Receiving Party by the Disclosing Party as shown by the files of the Receiving Party in existence at the time of disclosure; (ii) has become publicly known through no wrongful act of the Receiving Party; (iii) has been rightfully received by the Receiving Party from a third party authorized by the Disclosing Party to make such disclosure without restriction; (iv) has been approved for release by written authorization of the Disclosing Party; or (v) has been independently developed by the Receiving Party without any use of Confidential Information and by employees or other agents of the Receiving Party who have not been exposed to the Confidential Information. In addition, each Party shall be entitled to disclose the other Party’s Confidential Information to the extent such disclosure is requested by the order or requirement of a court, administrative agency or other governmental body provided that the Party required to make the disclosure shall provide prompt, advance notice thereof to enable the other Party to seek a protective order or otherwise prevent such disclosure.
- Return of Confidential Information. All Confidential Information shall be surrendered to the Disclosing Party upon the request of the Disclosing Party; provided, however, that Confidential Information may be retained by the Receiving Party to the extent that retention of such Confidential Information is necessary to comply with the Receiving Party’s internal document retention policies aimed at legal, corporate governance or regulatory compliance and any such retained Confidential Information shall remain subject to the disclosure and use restrictions set forth herein, notwithstanding any termination of this Agreement. The Receiving Party shall not be deemed to have retained or failed to return or destroy any Confidential Information if Confidential Information received or stored in digital format is deleted from local hard drives so long as no attempt is made to recover such Confidential Information from servers or back-up sources, provided that any such retained Confidential Information shall remain subject to the disclosure and use restrictions set forth herein, notwithstanding any termination of this Agreement.
- This Agreement may be terminated by either party at will upon written notice to the other Party.
- Upon termination, Client shall immediately pay to Contractor all monies due and owing, whether as Fees, expenses or any other obligation owed by Client to Contractor.
- In addition, if Client terminates this Agreement less than thirty (30) days after the commencement of a PPC campaign, Consultant shall retain One Hundred Percent (100%) of the initial setup fee paid by Client to Contractor plus one half (1/2) of the first month’s management fee if cancelled within ten (10) days after the Effective Date or One Hundred Percent (100%) of the first month’s management fee if cancelled more than ten (10) days after the Effective Date.
- In addition, if Client terminates this Agreement less than thirty (30) days after the commencement of Services involving creative design or development (i.e., Services other than those with which sales or responses, such as PPC, can be measured), Consultant shall retain an amount equal to $125 for each hour of Services rendered plus costs incurred.
- Upon termination and provided that all monies due and owing to Contractor by Client have been paid, Contractor will deliver to Client: (1) all Work Product in Contractor’s possession or control belonging to Client; and (2) all contracts with third parties, including Media or others, upon being duly released by Client and any such third party from any further obligations.
- If this Agreement is terminated by either Party at a time when Contractor is holding a Media Deposit on behalf of Client, Contractor may, at its sole discretion, pay part or all of the Media Deposit to the medium for which it was designated on behalf of Client or return the balance of the Media Deposit to Client.
- If this Agreement is terminated effective other than at the end of a billing cycle, Contractor shall return the proportionate of the amount paid by Client to Contractor for the current billing cycle for the portion of the current billing cycle after the effective date of termination.
11) No Consequential Damages
In no event shall Contractor be liable for special, inherent or consequential damages, including, without limitation, loss of use or profits.
12) Limitation on Liability
In no event shall Contractor’s liability under any claim or cause of action, including indemnification, exceed the amount paid by Client to Contractor for Services during the twelve (12) months immediately preceding the date such claim was made to Contractor.
- If and so long as Contractor is Client’s non-exclusive advertising agency and others may have plans or ideas that are similar, overlap or contradict those of Contractor, Contractor shall bear no responsibility if, in fact, other agencies of Client take actions that tend to counteract, minimize, interfere with or contradict the Work Product.
- Contractor does not in any way promise or ensure that any of the Services will have any particular results including but not limited to an increase in revenues, an increase in profits or an improvement in brand recognition. No oral or written representations, estimates or projections by anyone shall constitute a representation, warranty, promise or guarantee of any kind.
This Agreement is binding upon and shall inure to the benefit of the respective parties and their permitted assigns and successors.
- All notices or correspondence arising from or pertaining to this Agreement must be in writing and delivered in person, or electronically, or sent by registered or certified mail or nationally or internationally recognized overnight courier, with all fees prepaid to Contractor or to Client’s contact as indicated herein:
If to Client:
If to Contractor:
- The effective date of any written notice delivered or mailed pursuant to this Agreement shall be the date of receipt, if delivered, or the postmark date if mailed. If the receiving party rejects or otherwise refuses to accept a notice, or if it cannot be delivered because of a change in address for which no notice was given, then notice will be deemed given upon that rejection, refusal or inability to deliver.
- For a notice to be valid, an email copy shall accompany each of the foregoing modes of noticing a party. An email notice shall suffice as notice at such time as the sender receives a receipt acknowledgment or the recipient replies, directly or indirectly, to such notice.
- Either party may, at any time, change its mail or delivery address by giving the other party ten (10) calendar days prior written notice.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement; and the void provision shall be replaced by a valid provision coming as close as possible to the sense, spirit and purpose of the original provision.
17) Governing Law; Dispute Resolution
- Amicable Dispute Resolution.
- In the event of a dispute between the Parties hereunder (each, a “Dispute”), then, prior to commencing other legal proceedings (other than an action for interim injunctive relief pending final resolution of the Dispute), each Party will refer the Dispute to its designated representative to work in good faith to attempt to resolve the Dispute amicably for a period of thirty (30) days from the date of written notice of such Dispute from one Party to the other.
- Disputes that cannot be settled amicably shall be resolved by arbitration, as provided herein below. Notwithstanding the foregoing, nothing in this section shall prevent a Party from seeking interim injunctive or other equitable relief in any court of competent jurisdiction to preserve the status quo or to prevent irreparable harm pending resolution of any Dispute.
- Procedure. Any claim, dispute or controversy arising out of or relating to this Agreement and not resolved amicably shall be submitted by the Parties to binding arbitration in TAMPA by three (3) arbitrators in accordance with the rules of the American Arbitration Association (“AAA”). Each Party shall select one arbitrator and such arbitrators shall jointly appoint the arbitrator, who shall act as the chairperson. If either Party fails to appoint an arbitrator within thirty (30) days of a request by the other Party, or if the arbitrators selected by the Parties cannot agree on a chairperson within thirty (30) days after they have been selected, then either Party may request AAA to appoint a co-arbitrator (for the non-responsive Party). Such appointment and arbitration shall be binding on the Parties. Each Party shall have full rights of discovery in any such proceeding.
- Decision Final. The Parties agree to exercise their respective rights under AAA Rules to cause any arbitration proceeding under this section to be finalized and a decision rendered by the arbitrators as soon as reasonably practicable, but in no event more than six (6) months after commencement of such arbitration proceeding.
- Confidentiality. Except as otherwise required by law, the Parties and arbitrator(s) shall maintain as confidential all information and documents obtained during the arbitration process, including the resolution of the dispute. The arbitration shall be conducted in English.
- Costs. The non-prevailing Party in any arbitration shall pay the other Party’s costs and expenses (including reasonable travel expenses, fees and disbursements of the other Party’s counsel) and reimburse the other Party for its portion of the arbitration costs. In the event that neither Party wins totally, reimbursement shall be made proportionally in accordance with the AAA Rules. Any award rendered by the arbitrator(s) shall be final and binding upon the Parties. Judgment upon the award may be entered in any court of competent jurisdiction. If a Party fails to proceed with arbitration, unsuccessfully challenges the arbitration award, or fails to comply with the arbitration award, the other Party shall be entitled to costs, including reasonable attorneys’ fees and disbursements, for having to compel arbitration or defend or enforce the award.
- Jurisdiction. Each Party irrevocably and unconditionally (i) consents to the jurisdiction of any such proceeding and waives any objection that it may have to personal jurisdiction or the laying of venue of any such proceeding; and (ii) knowingly and voluntarily waives its rights to have disputes tried and adjudicated by a judge and jury except as otherwise expressly provided herein.
- Equitable Relief. Notwithstanding the foregoing or anything to the contrary in this Agreement, a breach of this Agreement may cause irreparable harm to the affected Party for which monetary damages are not a sufficient remedy. In such event, the affected Party may, without waiving any other rights or remedies and without posting a bond or other security, seek an injunction, specific performance or other equitable remedy.
18) Entire Agreement
This Agreement contains the entire agreement and understanding of the Parties. No other agreements, statements or promises have been entered into or made by the parties. No modification of this Agreement shall be binding upon the Parties, unless it is in writing and executed by both Parties.
- Except as otherwise expressly provided herein, no waiver with respect to this Agreement shall be enforceable unless in writing and signed by the Party against whom enforcement is sought. Except as otherwise expressly provided herein, no failure to exercise, delay in exercising, or single or partial exercise of any right, power or remedy by any party, and no course of dealing between or among any of the parties, shall constitute a waiver of, or shall preclude any other or further exercise of, any right, power or remedy.
- Client expressly waives any claim against Contractor which claim is based on, related to or arising from the non-performance, negligence, intentional acts or any acts or omissions of a supplier to Contractor or provider of services to or through Contractor (including installation) related to the Products.
- Notwithstanding anything to the contrary contained herein, each Party hereby waives and releases any claim for any matter against the other if (a) written notice of such claim is not delivered to the Party against which such claim is made within six (6) months of the date the claim arose or the date on which the allegedly aggrieved Party should reasonably have become aware of such claim, whichever is later, (b) the alleged default is still in existence on the date of said notice and (c) the default has not been ratified by PGE prior to said notice.
The provisions and warranties contained in this Agreement that by their sense and context are intended to survive the completion of performance or termination of this Agreement shall so survive. All indemnities provided in this Agreement shall survive the expiration or any earlier termination of this Agreement.