This (“Agreement”) is entered into the date thereof, (the “Effective Date”), by and between Two1Four Interactive, LLC, a limited liability company (“Two1Four”), and your company (the “Client”).
I. PURPOSE OF ENGAGEMENT
Two1Four is in the business of providing online marketing services. Client wishes to engage Two1Four for the purpose of providing certain online marketing services, and Two1Four wishes to provide such services, in each case as described herein.
II. SERVICES; DELIVERABLES; FEES
A. Services. Two1Four agrees to provide to Client certain online marketing services as set forth in the Statement of Work submitted by Two1Four to Client via email and/or written proposal, and signed by Client (and such other Statements of Work as may be entered into and executed by both parties during the Term as defined herein) (collectively the “Statements of Work" and all services provided to Client under such Statements of Work, the “Services”). The fees associated with the Services shall be set forth in the Statements of Work. All Statements of Work entered into shall be made and governed in accordance with the terms and conditions of this Agreement. Any Statements of Work following the initial Statement of Work shall be attached hereto as subsequent Exhibits upon being signed by both parties and shall become a part hereof.
B. Deliverables. “Deliverables” shall mean all ideas, concepts, works, information, data, materials and other deliverables that are developed, prepared, conceived, originated, generated, created or required to be delivered by Two1Four to Client resulting from the Services or otherwise pursuant this Agreement or a Statement of Work attached hereto, including, but not limited to, all website designs, website pages, landing pages, videos, banners, keyword lists, ad campaigns, and content written for websites and Client’s marketing campaigns, and all intermediate and partial versions thereof, that are delivered to Client, together with all specifications, written materials and documentation relating to the performance, operation and/or use of the foregoing.
C. Fees & Retainers. "Fees" shall mean payments owed by Client for Services and Deliverables by Two1Four to Client on a monthly basis and in accordance with the fee structure in the Statements of Work. "Retainers" shall mean payments owed according to a designated allotment of hours per month retained by Client from Two1Four in accordance with the discounted hourly rate set forth in the Statements of Work. Two1Four agrees to provide Client with an accounting of retained hours used on a quarterly basis unless agreed to otherwise by Two1Four. Services rendered beyond the retained number of hours will be billed at the full hourly rate. Hours are billed in 30 minute increments. Unused hours are not carried over.
D) Payments & Late Fees. Client agrees to provide Two1Four with authorization to charge Client's credit card on the 1st day of each month for Fees or Retainers due that month, unless Two1Four agrees to invoice Client. Invoiced Fees will be due no later than 30 days from the date of the invoice unless agreed to by Two1Four. Invoiced Retainers will be due on the 1st of each month for services rendered that month. Two1Four reserves the right to cease Services and/or Deliverables for Fees or Retainers past due over 30 days. Client agrees Fees or Retainers past due 30 days are subject to a 5% collection fee on the total balance due on an ongoing monthly basis. Two1Four reserves the right to increase Fees past the Initial Term with 30 days written notice to Client.
III. BEST EFFORTS
Client understands and acknowledges that Two1Four cannot guarantee the specific results Client will achieve from the services provided by Two1Four. Two1Four will use its best efforts in providing the services client has requested in a timely and workmanlike manner.
IV. TERM & TERMINATION
A. Term. The "Initial Term" of this Agreement will be effective for 3 months for each individual Services beginning with the initial date of payment for the respective Services, and unless earlier terminated in accordance with its term will automatically renew every month.
B. Termination. Either party may terminate this Agreement upon thirty (30) days’ prior written notice following the Initial Term.
C. Effects of Termination. Upon the termination of this Agreement, Client shall reimburse Two1Four for all outstanding invoices from Services performed by Two1Four as of the effective date of such expiration or termination. In addition, upon termination or expiration of this Agreement, or at any prior time upon the request of Client, Two1Four shall promptly deliver to Client all memoranda, notes, records, drawings, manuals, disks, documents, media, equipment, papers or other information obtained by Two1Four from Client or otherwise pertaining to the Services or to Client’s business, including all copies thereof, with the exception of any 3rd party subscriptions including, but not limited to website accounts, reputation softwares, website content and Google accounts maintained by Two1Four on behalf of Client unless purchased by Client from Two1Four for a mutually agreed-upon fee.
V. LIMITATION OF LIABILITY
CLIENT SPECIFICALLY AGREES THAT THE MAXIMUM LIABILITY OF Two1Four TO CLIENT WILL, UNDER NO CIRCUMSTANCES, EXCEED THE TOTAL AMOUNT CLIENT HAS PAID TO Two1Four PURSUANT TO THIS AGREEMENT. IN ADDITION, Two1Four WILL NOT BE RESPONSIBLE FOR ANY BUSINESS INTERRUPTION, LOSS OF REVENUE, OR LOSS OF PROFITS BY CLIENT. NEITHER CLIENT NOR Two1Four SHALL BE LIABLE TO THE OTHER FOR DELAYS IN PERFORMANCE CAUSED BY CIRCUMSTANCES BEYOND THEIR RESPECTIVE CONTROL.
Two1Four shall take all reasonable precautions to protect Client’s Confidential Information, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information. Client agrees not to release information to third parties about any of Two1Four’s designs, processes or techniques, nor use such designs, techniques or methodology for its own purposes in the future for other projects not covered by this agreement, acknowledging that such activity would constitute plagiarism, copyright infringement and/or theft of trade secrets.
VII. PROMOTIONAL MATERIALS
Client grants Two1Four permission to use Client’s name, logo and/or success metrics in Two1Four marketing materials including but not limited to case studies, website pages, and promotions.
VIII. FORCE MAJEURE
Neither party shall be responsible for delays or failure in performance of this Agreement to the extent that such party was hindered in its performance by any act of God or any other occurrence beyond its reasonable control that are not due to the negligence or misconduct of the party claiming relief under this Section XII; provided that such party has informed the other party of such force majeure event promptly upon the occurrence thereof (including a reasonable estimate of the additional time required for performance to the extent determinable), and such party uses commercially reasonable efforts to effect the required performance as soon as reasonably practicable.
IX. RELATIONSHIP OF THE PARTIES
This Agreement is not intended to create, and does not create, any partnership, joint venture, agency, fiduciary, employment or other relationship between the parties beyond the relationship of independent parties to a commercial contract. Neither party is, nor will either party hold itself out to be, vested with any authority to bind the other party contractually, or to act on behalf of the other party as a broker, agent or otherwise.
X. DISPUTE RESOLUTION
In the event of a dispute between Two1Four and Client (“the Parties”) related to this contract, the Parties agree to attend mediation prior to filing any action in a court of competent jurisdiction. The Parties also agree that all suits arising out of this contract shall be filed in the courts of Dallas County, Texas. The Parties further agree that in the event of litigation related to this contract, the prevailing party shall be awarded its reasonable attorney’s fees, costs of court and expenses incurred.
XI. GOVERING LAW
The laws of the State of Texas will govern this Agreement without giving effect to conflict of laws principles.
Neither party may assign this agreement to any third party (whether pursuant to a sale of assets, merger, change of control or otherwise) without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign its rights and responsibilities under this agreement to an entity that is controlled by or is under common control with such party without the prior written consent of the other party.
Each party will comply with all federal and state laws and regulations applicable to the performance of such party's obligations under this Agreement, including without limitation, adherence to all e-mail and telephone marketing and privacy laws and regulations, including but not limited to all provisions of the United States CAN SPAM legislation enacted January 1, 2004, all federal and state Do Not Call lists and all laws regulating the delivery of email whether solicited or unsolicited. Two1Four shall not access, use or disclose any non-public personal information of the individual consumers of Client which it receives other than in the course of providing the products and performing the services hereunder, and Two1Four shall implement and maintain safeguards appropriate to protect the security, confidentially and integrity of such non-public personal information. Two1Four shall comply in all respects with the applicable requirements of the Gramm-Leach-Bliley Act (P.L. 106-012)(15 U.S.C., 6801 et seq.) and implementing regulations thereof.
Each party (the “Indemnifying Party”) shall indemnify the other party (the “Indemnified Party”) against any and all claims, liabilities, losses, costs and expenses, including reasonable attorneys' fees, which the Indemnified Party may incur as a result of claims in any form by third parties arising from or relating to any breach of the Indemnifying Party's warranties, representations and covenants as set forth in this Agreement. The Indemnified Party shall (i) give the Indemnifying Party prompt notice of the relevant claim, (ii) cooperate with the Indemnifying Party, at the Indemnifying Party's expense, in the defense of such claim, and (iii) give the Indemnifying Party the right to control the defense and settlement of any such claim, except that the Indemnifying Party shall not enter into any settlement that affects the Indemnified Party's rights or interest without the Indemnified Party's prior written approval. The Indemnified Party shall have the right to participate in the defense at its own expense. This indemnification shall survive the expiration or termination of this Agreement by either party for any reason.
XV. CONFLICT OF TERMS
In the event of any conflict between this Agreement (or any portion thereof) and any Statement of Work now existing or hereafter entered into between the Two1Four and Client, the terms of this Agreement shall prevail