1. Definitions. “Deliverables” means the services and work product which shall be specified herein this agreement and/or in each Statement of Work to be delivered by Agency to Client in the form and media specified herein this agreement and/or in the Statement of Work.
“Final Deliverables” means Deliverables that are accepted by Client pursuant to the acceptance procedures set forth herein, and utilized by the Client in the form and manner for which they were created by Agency. Final Deliverables do not included Deliverables rejected by Client, or material that is not used in the Final Deliverables (including but not limited to programs, software, hardware, edited out video footage, unused musical compositions, unused audio recordings etc.).
“Pre-Existing Work” means work made, developed conceived, created or acquired by Agency either prior to the Effective Date of this Agreement or obtained, made, developed, conceived, created, independently and not in connection with a Statement of Work or project governed by this Agreement. Agency shall retain all rights in and to Pre-Existing Works.
“Statement of Work” means the detailed statement and description in the form set forth in Exhibit “A” attached hereto and made part hereof, setting forth, at a minimum the scope of the project, all Deliverables, fees and expenses and a schedule for completion.
“Third Party Materials” means materials owned by third parties to this Agreement or to any Statement of Work governed by this Agreement.
2. Marketing Services Agency shall consult with and assist Client throughout the term of this Agreement in the execution of its branding strategy for the purpose of successfully differentiating Client’s products and services. Agency shall provide the services (“Marketing Services”) more particularly set forth herein this agreement and more particularly described on “Exhibit A”. Agency will perform the Marketing Services in a timely and professional manner, consistent with industry standards, at a location, place and time that Agency deems appropriate, and all in accordance with this Agreement. The manner and means that Agency chooses to perform the Marketing Services are in Agency’s sole and absolute discretion and control. Agency, in consultation with Client, will determine the method, details, and means of performing the Marketing Services for Client and document such agreement. In addition, Client shall be entitled to exercise a broad, general power of supervision and control over the results of work performed by Agency to ensure satisfactory performance. This power of supervision shall include the right to inspect, temporarily stop the Marketing Services, make suggestions or recommendations as to the details of the Marketing Services, and request modifications to the scope of the Marketing Services. Modification to the scope of the Marketing Services by Client resulting in additional services by Agency shall be compensated accordingly.
3. Intellectual Property Ownership and Rights. During the terms of this agreement, all Final Deliverables shall remain exclusively the property of Client, and Client may file applications to register copyright in such Final Deliverables as author and copyright owner thereof. All Deliverables rejected or not approved or accepted by Client as set forth herein shall not become Final Deliverables, and Agency shall retain all right, title, and interest in and to such Deliverables and may file applications to register copyright in such materials as author and copyright owner thereof.
Agency shall not incorporate Pre-existing Works or Agency Material into any Deliverable without Client’s prior written approval. If Pre-Existing Works are used in the Final Deliverables, Agency hereby grants to Client a nonexclusive royalty-free paid-up, perpetual, irrevocable, worldwide license to make, reproduce, modify, use license, sublicense, and sell such Pre-existing Works as is required for Client to make use of the Final Deliverables.
To the extent Client requests the use of Third Party Materials in the Deliverables, Client represents and warrants that it has secured all necessary rights and permissions to allow Agency to utilize such Third Party Material in the Deliverables and/or Final Deliverables. Client further represents to Agency and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Agency (the “Elements”) for inclusion in any work product or deliverables as part of the Marketing Services and or Statement of Works are owned by Client or that Client has permission from the rightful owner to use each of the Elements and will hold harmless, protect, and defend Agency from any claim or suit arising from the use of any of the Elements furnished by Client.
Client hereby grants Agency a limited license to use, reproduce and display the Final Deliverables in any form, manner, or media now known or hereinafter devised in Agency’s portfolio as an example of Agency’s work.
4. Attribution. Client shall credit Agency with the creation of the Final Deliverables in a form and manner agreed upon by the parties in the Statement of Work, but substantially in the following form : “Created by Ground Floor Creative, LLC”.
5. Compliance with Laws/Licenses. Agency will provide Marketing Services for Client in accordance with the applicable federal, state and local laws, rules and regulations.
6. Indemnification. Client shall indemnify and hold harmless Agency, its members, managers, directors, officers, agents, and employees harmless from and against any and all loss, damage, liability or claims (including, without limitation, costs and expense of litigation and reasonable attorneys’ fees) (collectively “Claims”) arising from, directly or indirectly, or connected with, Agency under this Agreement including, but not limited to claims of (i) any breach of any representation or warranty made by Client under this Agreement; or (ii) any failure by Client to perform or fulfill any of its covenants or agreements set forth in this Agreement or any agreements executed in connection herewith. Client shall further indemnify and hold Agency its members, managers, directors, officers, agents, and employees harmless from and against all Claims, except to the extent such Claims are due solely to Agency’s gross negligence or willful misconduct or alleged criminal acts.
Agency shall indemnify and hold harmless Client, its members, managers, directors, officers, agents, and employees harmless from and against any and all loss, damage, liability or claims (including, without limitation, costs and expense of litigation and reasonable attorneys’ fees) (collectively “Claims”) arising from, directly or indirectly, or connected with, Client under this Agreement including, but not limited to claims of (i) any breach of any representation or warranty made by Agency under this Agreement; or (ii) any failure by Agency to perform or fulfill any of its covenants or agreements set forth in this Agreement or any agreements executed in connection herewith.
7. Acceptance of Deliverables. Upon completion of the Deliverables, the deliverable shall be provided in an agreed upon format for Client to review as may be described in this Agreement or in the Statement of Work, Client shall have five (5) business days from the date it receives a Deliverable to complete its review (the “Review Period”). If Client does not notify the Agency of its approval or disapproval within the Review Period, the Deliverable is deemed approved and Agency may continue its work. If Client reasonably believes that a Deliverables not conform to the Statement of Work or is otherwise unacceptable, Client shall notify Agency in writing, setting forth the reasons why Client believes that such Deliverables not acceptable. Agency shall attempt to correct the Deliverable within a reasonable time frame, not to exceed ten (10) business days (“Cure Period”) unless it is unreasonable for such Cure Period to be only ten (10) days or unless the Client consents to a longer Cure Period. Deliverables that are accepted by Client and/or utilized by Client in the manner in which they were intended are deemed Final Deliverables.
8. Third-Party Claims. In the event that Agency or Client receives actual or constructive notice from any professional, any federal, state or local agency, or any court of law that a claim has been made or that any third party has made a claim against the Agency or Client arising out of the Marketing Services or Statement of Work or this Agreement the Client or Agency shall immediately provide notice to the other party as provided in the Notices section below.
9. Fees. Client shall pay the rates show on Exhibit “A,” attached hereto and incorporated herein, for the services provided hereunder by Agency and/or according to payment terms specified on a Statement of Work.
10. Invoices/Payment. All undisputed invoices for the Marketing Services shall be due ten (10) days after the receipt of invoice from Agency. Agency shall invoice Client, as applicable, according to this Agreement and/or in the Statement of Work. Client will pay Agency directly. Notwithstanding anything to the contrary, Client will have no liability or obligation to defend or pay any claim made by any independent contractors of Agency for non-payment by Agency, unless such claim is due to non-payment of undisputed invoices by Client. Agency agrees to indemnify, defend and hold Client harmless from and against any and all claims, including but not limited to, wage and hours claims and Workers’ Compensation claims made by independent contractors hired by Agency against Agency or Client.
11. Confidentiality. For purposes of this provision, each party will be referred to as a “Discloser” where it discloses its Confidential Information and as a “Recipient” where it receives the other party’s Confidential Information. Recipient agrees to keep confidential all confidential and/or proprietary information concerning Discloser that is furnished by Discloser to Recipient in connection with this Agreement, including, but not limited to, the contents of this Agreement, any information regarding Discloser’s products, projects, business, plans, programs, plants, processes, equipment, costs, customers and operations and any other information, which, under all of the circumstances, ought reasonably to be treated as confidential and/or proprietary (collectively, “Confidential Information”). Without Discloser’s prior written consent, Recipient will not disclose nor will it permit its representatives to disclose any Confidential Information to any persons other than who have a need to know such information in connection with performing its obligations under this Agreement. The obligations of Recipient to keep confidential any Confidential Information shall continue beyond the termination of this Agreement until such Confidential
Information comes into the public domain through no omission or unauthorized act of the Recipient.
Confidential Information shall not include information that is (a) or becomes publicly available other than as a result of a breach of this Agreement by Recipient or its representatives; (b) furnished or made known to Recipient by third parties (other than those acting on behalf of Discloser) reasonably understood to have the right to disclose such information without restriction on disclosure or use; (c) legitimately in Recipient’s possession prior to disclosure by Discloser or (d) developed by Recipient without reference to the Confidential Information.
If Recipient is requested or becomes legally compelled to disclose any Confidential Information, Recipient shall provide Discloser with prompt written notice of the request or requirement so that Discloser may seek a protective order or other appropriate remedy. If such order or other remedy is not obtained, Recipient agrees to furnish only that portion of the Confidential Information as it is advised by counsel is legally required to be disclosed and to exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded the Confidential Information.
The parties acknowledge that the breach of this Section by one party may give rise to irreparable injury to the other party which is not adequately compensable in damages or at law. Accordingly, the parties agree that injunctive relief may be an appropriate remedy to prevent violation of either party’s respective rights or obligations under this section.
12. Modification or Revision to Statement of Work or Marketing Services. Neither party shall make any changes to this Agreement and/or a Statement of Work without prior written consent of the other party. Either party may at anytime request a change to a Statement of Work, however, such change in the Statement of Work may also change the timeframes and/or costs of the Marketing Services Performed. As such the parties must execute a new Statement of Work denoting such changes based on the modification to the original Statement of Work.
13. Limitations of Liability. In no event shall Agency be liable in connections with any claim arising out of this Agreement, for damages which exceed the amount of the total payment received by Agency from Client pursuant to this Agreement. In no event shall Agency be liable to Client under this Agreement for any special, indirect, incidental, punitive, or consequential damages, including but no limited to loss of profits, arising from or related to this Agreement, even if Agency has been advised of the possibility of such damages.
14. Non-Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between Agency and Client. Agency is free to offer and provide services to other businesses and individuals. Client is free to engage others to perform same or similar services that are provided by Agency.
15. Term. The term of this Agreement shall commence on the Effective Date and continue for one (1) year. In addition, this Agreement shall automatically renew for successive one-year terms unless terminated according to the terms of this Agreement.
16. Termination. Either party may terminate this Agreement, with or without cause, upon thirty (30) days written notice to the other party, provided that the party requesting
termination completes all obligations under any signed Statement of Work. Termination of this Agreement shall be without prejudice to any other remedy otherwise available to Agency or Client at law or in equity. The termination or expiration of this Agreement shall not affect any of the provisions of this Agreement that by their nature and context are intended to continue after the termination or expiration of this Agreement. If a party is in breach of this Agreement and the non-breaching party provides notice to said breaching party of the breach, and the breaching party fails to remedy the breach within ten (10) days from said notice, then this Agreement may be terminated immediately by the non-breaching party upon the expiration of the ten (10) period following the notice to the other party for breach.
17. Assignment and Binding. Client shall not assign or subcontract this Agreement or any of its obligations under this Agreement without the prior, expressed, written consent of the Agency. Agency shall be permitted to assign or subcontract this Agreement or any of its obligations under this Agreement without the prior, expressed, written consent of the Client. The rights and obligations of the parties under this Agreement shall inure the benefit of and be binding upon the parties’ legal representatives and permitted successors and assigns.
18. Representations and Warranties. Client hereby represents and warrants and covenants that is free lawfully to make this Agreement and that the person executing this Agreement below has the authority to bind Client to this Agreement. Client warrants that all of its officers, employees, agents and the like who might reasonably be expected to perform or assist in the performance of Client’s obligations under this Agreement will comply with the terms of this Agreement. Client represents and warrants that, to the extent Client requests Third Party Materials be utilized in the Deliverables, Client has secured all necessary rights and permissions to allow Agency to utilize such Third Party Materials in the Deliverables and/Final Deliverables.
Agency hereby represents and warrants and covenants that is free lawfully to make this Agreement and that the person executing this Agreement below has the authority to bind Agency to this Agreement. Agency warrants that all of its officers, employees, agents and the like who might reasonably be expected to perform or assist in the performance of Agency’s obligations under this Agreement will comply with the terms of this Agreement Agency represents and warrants and covenants that Agency owns all right, title and interest in, or otherwise has full right and authority you permit use of Agency’s contributions to the Final Deliverables. To the best of Agency’s knowledge the Agency’s contributions to the Final Deliverables do not infringe the rights of a third party, and the use and contribution to the Final Deliverables does not and will not violate the right of any third party. Agency further warrants and represents the Deliverables to be provided by Agency will conform to the Marketing Services and/or Statement of Work set for the in Exhibit A. Agency warrants that it will perform the services under this Agreement in a professional manner in accordance with reasonable professional standards for such services.
19. Notice. To the extent notice is required or the parties are required to respond via written communication (collectively, “Notice”), such Notice shall be (a) personally delivered; (b) sent by certified mail, postage prepaid, return receipt requested, with such notice deemed to have been given upon posting in the United States Mail; or (c) by national delivery service guaranteeing overnight delivery, with such notice deemed to have been given upon the next business day; or (d) by facsimile transmission, provided a confirmation copy is sent via one of the other methods provided herein to the addresses provided below, with such notice deemed to have been given upon receipt of the facsimile transmission.
20. Entire Agreement/Modification. This Agreement constitutes the entire agreement between the parties hereto. This Agreement supercedes any and all prior agreements, discussions, negotiations, arrangements, or understandings, whether written, oral or implied, with respect to the subject matter of this Agreement for the location(s) being serviced. All Exhibits referenced in this Agreement are incorporated herein by reference. Except as otherwise provided herein, this Agreement may not be modified or amended without the prior written consent of each party.
21. Severability. In the event that any provision of this Agreement shall be held to be invalid, void or unenforceable as determined by a court of competent jurisdiction shall in no way affect the validity of any other provision hereof and the remainder of the Agreement shall be held valid and enforceable to the fullest extent permitted by law.
22. Waiver. Waiver of a breach of any provisions of this Agreement shall not be deemed a waiver of any other breach of the same or different provision.
23. Attorneys Fees. In the event of any claim, dispute or legal proceeding arising out of or relating to this Agreement, the party prevailing in such dispute shall be entitled to recover all fees and expenses (including, without limitation, costs of investigation, reasonable attorneys’ fees and litigation expenses) incurred in connection therewith.
24. Dispute Resolution; Equitable Relief. The parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement through discussions between the respective Client and Agency. If these discussions are unsuccessful, the parties agree that any legal action or proceeding with respect to this Agreement may be brought either in the state court of Hamilton County, Indiana or the Federal District Court of the United States of America which governs Hamilton County, Indiana and by execution and delivery of this Agreement, each party hereby consents to the jurisdiction of the aforesaid courts solely for the purpose of adjudicating its rights with respect to this Agreement or by document related thereto. Each party hereby consents to service of process by certified mail and irrevocably waives any objections to the sufficiency of any service which is given in such manner. The parties further agree to waive any right to a jury trial that either party might otherwise have in any and all courts.
25. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Indiana, without regard to its choice of law principles. All proceedings arising under or relating to the subject matter of this Agreement or the Agreement itself shall be maintained exclusively in the federal or state courts located in Hamilton County, State of Indiana, and the parties hereby consent to exclusive personal jurisdiction and venue therein and expressly waive any right to object to personal jurisdiction or venue.
26. Independent Contractor. The provisions of this Agreement are not intended to create, nor shall they be in any way interpreted to create, a joint venture, a partnership, or any other similar relationship between the parties hereto. Agency shall operate as an independent contractor and shall not be considered in any way to be acting as an agent or employee of Client for any
purpose. Except as provided herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of the other party.
27. Force Majeure. In the event an act of government, war conditions, fire, flood, terrorism, labor action, weather, or act of God prevents either party from performing in accordance with the provisions of this Agreement, such non-performance shall be excused and shall not be considered a breach or default so long as the said condition prevails.
28. Section Titles. The section titles contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not part of the agreement between the parties hereto.
