Article 6 – TAXES:
Marketer and Client shall each be solely responsible for all of the federal, state, and local taxes applicable to them.
Article 7 – MILESTONES:
This Agreement will be of an indeterminate length and the independent contractor relationship will be ongoing unless terminated by either Party in writing.
Article 8 – NON EXCLUSIVITY:
Client and Marketer hereby acknowledge and agree that nothing contained herein is to establish an exclusive relationship between the Parties. Marketer shall be free to continue working for and taking on new clients, without regard to Client. Marketer does not need Client approval for any such work. Client is also free to hire additional marketers for any of Client’s work and does not need Marketer’s approval to do so.
Article 9 – CLIENT LEGAL REQUIREMENTS:
It is the Client’s sole and exclusive responsibility to ensure that all legal requirements for Client’s business are met. Such legal requirements include, but are not limited to, ensuring claims on advertising and graphics are true, accurate, and may be legally stated, as well as ensuring all products and product sales are lawful are lawful. Marketer shall not be responsible for any legal, technical, or regulatory specifications.
Article 10 – TERMINATION:
This Agreement may be immediately terminated in the event that there is a breach of the terms by either Party.
If Client finds Marketer’s work unsatisfactory, Marketer shall be given the following amount of time for one revision to cure: 10 days. After this cure period, if Client still finds the work unsatisfactory, Marketer shall not be under any additional obligations. Client shall still be responsible to pay Marketer all due fees and the Parties may then terminate this Agreement.
This agreement will also immediately terminate upon the death of the Marketer or Client, the inability of the Marketer to perform the services because of a sudden and medically documented physical or mental disability, the liquidation, dissolution or discontinuance of the business of the Client or Marketer in any manner, or the filing of any petition by or against the Client or Marketer under federal or state bankruptcy or insolvency laws. This Agreement may also be terminated by either Party in writing. Notice shall be given at least the following amount of time before termination: 7 days.
Upon termination for any reason, all fees and reimbursements shall be paid and provided to the Marketer as they have accrued up to the date of termination.
Upon expiration or termination of this agreement, or at any other time upon the Client’s written request, Marketer shall promptly after such expiration or termination:
– Deliver to the Client all work (whether complete or incomplete) and all hardware, software, tools, equipment, or other materials provided for Marketer’s use by the Client;
– Deliver to the Client all tangible documents and materials (and any copies) containing, reflecting, incorporating, or based on the Client’s confidential or proprietary information, as discussed further elsewhere in this Agreement;
– Permanently erase all of the confidential or proprietary information from any of the Marketer’s computer systems; and
– Certify in writing to the Client that Marketer has complied with the requirements of this clause.
Article 11 – CONFIDENTIAL OR PROPRIETARY INFORMATION:
Marketer hereby acknowledges and agrees that Marketer may receive confidential and/or proprietary information relating to Client’s business. Such information may include, but will not be limited to, client lists, client notes, specifications, project information, plans, and/or technological resources. The confidential and/or proprietary information is significantly important to Client’s business and it has been developed or obtained over time, with significant resources involved. Marketer understands and agrees that any unintended disclosure of any of the confidential and/or proprietary information would be significantly detrimental to Client. As such, Marketer agrees that they shall:
I) Not disclose the confidential and/or proprietary information by any means not authorized by the Client to any third parties;
II) Not copy or duplicate the confidential and/or proprietary information unless specifically directed to do so by the Client;
III) Not disclose the confidential and/or proprietary information by any unauthorized means to any third parties for a period of at least one year following the termination of this agreement;
IV) Not use the confidential and/or proprietary information for any purpose except those expressly authorized by the Client;
V) Inform Client immediately if Marketer becomes aware of any unauthorized use or disclosure of the confidential and/or proprietary information.
Article 12 – PORTFOLIO USE:
Notwithstanding the specific rights of intellectual property outlined by this Agreement, Marketer shall be permitted to use all work in Marketer’s professional portfolio, after such work has been made public by the Client. Nothing contained herein shall limit Marketer’ such right.
Article 13 – LIMIT OF LIABILITY:
Maximum Damages. Client agrees that the maximum amount of damages he or she is entitled to in any claim relating to this Agreement or Services provided in this Agreement are not to exceed the Total Cost of Services provided by the marketer minus any non refundable costs.
Loss of Product. In the event that any or all product(s) are lost, such as damage to or loss of a component of the product necessary for final delivery, marketer shall refund Client a pro-rated portion of the Total Cost based on the amount of Services that were completed/provided against the amount of Services that were agreed to be completed/provided.
Indemnification. Client agrees to indemnify, defend and hold harmless marketer and its affiliates, employees, agents and independent contractors for any injury, property damage, liability, claim or other cause of action arising out of or related to Services and/or product(s) marketer provides to Client.
Marketer and Client shall each defend, indemnify, and hold the other harmless (including all affiliates, officers, directors, employees, agents, successors, and assigns) from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees) arising out of or resulting from bodily injury, death of any person, damage, real or intangible, to personal property resulting from the Services and/or product(s) marketer provides to client or omissions or the breach of any representation, warranty, or obligation under this Agreement.
Article 14 – SURVIVAL:
Any provision of this Agreement which by its terms imposes continuing obligations on either of the Parties shall survive termination of this Agreement.
Article 15 – DISPUTE RESOLUTION:
In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted in the county and state noted in the GOVERNING LAW provision of this Agreement. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing federal law as well as the law of California. Each Party shall pay their own costs and fees. Claims necessitating arbitration under this section include, but are not limited to: contract claims, tort claims, claims based on federal and state law, and claims based on local laws, ordinances, statutes or regulations. Intellectual property claims by Marketer will not be subject to arbitration and may, as an exception to this sub-part, be litigated. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.
Article 16 – GOVERNING LAW:
This Agreement shall be governed by and construed in accordance with the internal laws of California without giving effect to any choice or conflict of law provision or rule. Each party irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts located in the following county in any legal suit, action, or proceeding arising out of or based upon this Agreement or the work provided hereunder: United States.
Article 17 – BENEFIT:
This Agreement shall be binding upon and shall inure to the benefit of each of the parties hereto, and to their respective heirs, representatives, successors, and assigns.
Article 18 – COUNTERPARTS:
This Agreement may be executed in counterparts, all of which shall constitute a single agreement. The Agreement shall be effective as of the date set forth above.
Article 19 – NOTICES:
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement. All notices shall be delivered by email or at the address which the parties may designate to each other through personal delivery, nationally recognized overnight courier (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if (a) the receiving party has received the Notice and (b) the party giving the Notice has complied with the requirements of this Section.
Article 20 – FORCE MAJEURE:
Marketer is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
Article 21 – HEADINGS:
Headings to this Agreement are for convenience only. Headings shall in no way affect the provisions themselves and shall not be construed in any way that would limit or otherwise affect the terms of this Agreement.
Article 22 – ENTIRE AGREEMENT; MODIFICATION:
The agreement embodies the entire agreement between the Client and Marketer relating to the subject matter hereof. This Agreement may be changed, modified or discharged only if agreed to in writing by both parties.