THIS CLIENT SERVICES AGREEMENT (“Agreement”) is made between Backbone LLC, a North Carolina Limited Liability Company (“Consultant”) and its clients (“Client”) — each a “Party,” together the “Parties”).
WHEREAS, Client desires to appoint Consultant as its exclusive provider of digital services.
WHEREAS, Consultant desires to accept such appointment and to provide Client such services as Client requires; and
WHEREAS, Client and Consultant desire to set forth the terms and conditions pursuant to which Consultant shall provide to Client and Client shall acquire from Consultant, such services.
NOW, THEREFORE, in consideration of the foregoing recitals, and the mutual promises and covenants contained herein, the Parties hereto agree as follows:
1. SERVICES
(a) During the term of this Agreement, Consultant shall perform the Services (as defined in Schedule A) as set forth in one or more statements of work or insertion orders (each a “Statement of Work”), attached hereto as Schedule A and hereby incorporated by reference. In purchasing materials or services for Client pursuant to a Statement of Work, Consultant may act as Client’s agent. During the term of a Statement of Work, Client agrees that Consultant shall be its agent of record and exclusive provider of the type of services set forth on such Statement of Work. Either Party may request changes to the Statement of Work at any time. Changes must be requested in writing with sufficient detail to enable the other Party to assess the impact of the requested change on the cost, timing, or any other aspect of the Statement of Work. Until a change is mutually agreed in writing, the latest agreed terms will apply. Any change to the Statement of Work will only be effective upon written agreement of the parties and payment of any Fees, if required. For Clarity, Consultant will not begin performance on a new or amended statement of work until mutually agreed in writing by both Parties, as evidenced by a separately signed writing and until Consultant receives any fees agreed upon in said writing.
(b) Client acknowledges that the rendering of the Services will require the good faith cooperation of Client. Therefore, Client agrees to provide all information reasonably requested by Consultant in order for Consultant to effectively and efficiently perform the Services, to timely respond to inquiries, and to promptly review any materials. Consultant reserves the right to reasonably extend the delivery schedule and/or assess reasonable additional charges to the extent required because of Client’s failure to cooperate as set forth herein. Client shall be responsible for all materials and information provided by, on behalf of or approved by, Client for use in connection with the Services, including but not limited to, all rights to use such materials, their accuracy and completeness, and information regarding its products, services, industry, and competitors. Client shall review all materials prepared by Consultant under this Agreement to confirm that descriptions and representations, direct or implied, with respect to Client’s organization, products, services, industry, and competitors are accurate and supportable. Consultant may rely upon all decisions and approvals from Client, and Consultant shall not be liable for any matter as a result of following Client’s specific instructions. Further, Client may, in writing, waive the right to approve any of the materials, but shall still be liable for the contents of said materials so long as they are provided for in any written waiver of approval provided by Client in writing.
2. FEES
(a) In exchange for the Services set forth in Schedule A, Client shall pay Consultant each payment as outlined in Schedule A:
(b) Consultant shall submit to Client an invoice for all fees and appropriate out-of-pocket expenses, either pre-paid or reimbursed, for Services in accordance with the Statement of Work and/or as provided in this Section 2. Each invoice will include a breakdown of the work performed and amounts being invoiced to the Client. Except as otherwise provided in this Agreement, all invoices are payable within five (5) days from the date of an invoice. If any amount contained in an invoice is disputed by Client, Client shall, in writing, clearly identify the amount of the invoice disputed within five days of receipt and the reasons therefore and shall pay the undisputed balance of the invoice in accordance with the terms hereof. Client waives any disputes not raised within such five-day period. Consultant may charge Client interest at the rate of the lesser of one and one-half percent (1.5%) per month or the maximum amount permissible by law on all amounts not paid by Client by the due date. Client shall be responsible for all costs of collection, including attorney’s fees and expenses, in pursuing overdue amounts under this Agreement. Consultant shall submit all Client invoices to the address on file.
Invoices may be sent via email or Standard U.S. mail, at Consultant’s sole discretion and expense, and shall be considered received upon delivery by Consultant to the foregoing address not receipt by Client.
(c) Unless Consultant otherwise agrees in writing to front any service, labor, material, and/or third party costs, Client shall pay Consultant in advance for all out-of-pocket expenses pre-approved by Client in writing or authorized by this Agreement. Any such out-of-pocket expenses that must be paid upfront will be requested by Consultant in writing and/or by way of invoice.
(d) Client shall pay for all sales, use, value added, excise, withholding, and other similar taxes required to be paid by law with respect to the Services and expenses incurred in connection with this Agreement, excluding taxes based upon Consultant’s income. In the event that Client is required by law to withhold any such taxes from any payments due hereunder, Client shall increase the gross amount of the payments to ensure that Consultant receives and retains the full amount of the compensation set forth on the Statement of Work.
3. TERM AND TERMINATION
(a) This Agreement shall commence on the Effective Date, and shall continue as described in Schedule A (“Term”), unless earlier terminated in accordance with this Section 3. Following the initial Term, this Agreement may be renewed upon mutual written agreement of the Parties.
(b) During the Term, this Agreement or any Statement of Work may not be terminated without cause by either Party.
(c) Either Party may suspend performance of the Services or terminate this Agreement or any Statement of Work if the other Party is in material breach thereof and fails to cure such breach within thirty (30) days of written notice. Further, Consultant may suspend performance of the Services or terminate this Agreement or any Statement of Work within ten (10) days in the event of a failure to pay the Monthly Fee and any fees or expenses when due. Notice of payment shall be delivered by way of the monthly invoice submitted to Client. No additional notice of payment or late payment will be required for Consultant to terminate the Agreement pursuant to this Section 3(c).
(d) Upon the termination or expiration of this Agreement, Consultant will, at the request of Client, exercise commercially reasonable efforts to assign and/or return any of Client’s personal and/or professional effects to Client’s assignee or designee. In the case of the assignment of any such commitment or contract, Consultant shall be released from any liability in connection with such assignment.
(e) Upon the termination or expiration of this Agreement, except for termination as a result of a breach of this Agreement by Client, Consultant shall remain available, for a period not to exceed ninety (90) days from the date of termination or expiration, to provide reasonably requested information to Client and/or an alternative digital marketing Consultant, provided that Client has paid Consultant all amounts due and outstanding upon termination or expiration.
(f) Regardless of any termination or expiration of this Agreement, Client shall honor and complete all commitments and contracts, including without limitation the payment of all committed media expenditures, applicable fees, expenses, materials, and services obtained from third parties entered into by Consultant, as authorized by Client, prior to the date of termination or expiration of this Agreement, for and on behalf of Client, regardless of whether such commitments or contracts are required to be performed before or after the date of such expiration or termination.
4. INTELLECTUAL PROPERTY RIGHTS
(a) Ownership of Work Product. Client acknowledges and agrees that all right, title, and interest in and to all “Work Product” meaning all writings, whether published or unpublished, artwork, posts, published works, ideas, concepts, research, proposals, materials, and all other Work Product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived, or reduced to practice solely by Consultant or jointly with others during the Term and relate in any way to the business or contemplated business, products, activities, research, or development of Consultant or result from the Services (in each case, regardless of when or where the work product is prepared or whose equipment or other resources is used in preparing the same), all rights and claims related to the foregoing, and all printed, physical, and electronic copies and other tangible embodiments thereof (“Work Product”) as well as any and all intellectual property rights therein and all improvements thereto shall be the sole and exclusive property of Consultant. The Work Product is and shall at all times remain the Confidential Information of Consultant and Consultant shall have the unrestricted right (but not any obligation), in its sole and absolute discretion, to (i) use, commercialize, or otherwise exploit any work product or (ii) file an application for patent, copyright registration, or registration of any other Intellectual Property Rights, and prosecute or abandon such application prior to issuance or registration. No royalty or other consideration shall be due or owing to Client now or in the future as a result of such activities.
(b) Use of Client Name, Image, and Likeness. Pursuant to this Agreement and with no additional consent or approval required except as otherwise required herein for content approval, Client hereby gives Consultant the right to use Clients name(s), images, likeness, or logos in the draft, mock-up, and/or unpublished marketing materials, social media posts advertising or otherwise that will be submitted to Client for written approval in each instance prior to publication. All rights granted in this Section 4 shall terminate immediately upon expiration or termination of this Agreement.
(c) Online platform Ownership. Nothing in this Agreement shall grant Consultant with any right, title, or interest in and to the Online Platforms unless otherwise agreed to in writing by both Parties.
5. CONTENT OWNERSHIP Unless otherwise agreed to in writing by both Parties, Consultant shall retain all right, title, interest, and ownership over ALL content created for Client pursuant to this Agreement.
6. RIGHT OF APPROVAL. The client shall have the right to review and approve all content prior to posting, distributing, or displaying on any of the Online Platforms. The client shall have the right to request the removal of any content that has already been posted, published, or disseminated on any of the Client’s Online Platforms, even if express approval to post, disseminate, or display was previously granted.
7. MEDIA ACCESS. To assist Consultant in the performance of the Services, Client shall provide Consultant with access to Client’s private photo, video and audio (“Media”) files or Client shall timely deliver all Media files to Consultant intended for the express purpose of posting, publishing or disseminating on the Online Platforms.
8. INDEMNITY
(a) Consultant shall indemnify, defend and hold Client harmless from and against any and all losses, damages, liabilities, claims, demands, suits, expenses, and any other out-of-pocket costs (including reasonable attorneys’ fees and expenses) (“Costs”) Client may incur, or be liable for, as a result of any claim, suit, or proceeding made or brought by a third party (“Claims”) against Client based upon, or arising out of: (i) Consultant’s gross negligence or willful misconduct or (ii) Consultant’s violation of applicable law. The foregoing indemnification by Consultant shall not apply where such claim, suit, or proceeding arises out of matters as to which Consultant has advised Client of the risks involved and Client has agreed to accept those risks; nor shall such indemnity apply to materials or information provided by Client to Consultant or materials from a third party.
(b) Client shall indemnify, defend and hold Consultant harmless from and against any and all Costs which Consultant may incur (including reasonable attorney fees and expenses), or be liable for, as a result of any Claims against Consultant arising out of: (i) any materials or information provided by Client or as to which Client undertook to obtain rights, (ii) risks that Consultant has advised Client of in writing where Client has elected to proceed or (iii) allegations: (1) that any descriptions or depictions of, or representations regarding Client and/or Client’s organization, products, services, industry, or competitors in any materials created, prepared, produced, or placed by Consultant are false, deceptive, misleading, unsubstantiated, or otherwise inaccurate or improper; (2) regarding Client’s products, services, statements or claims including that they are defective, injurious, or harmful (including, without limitation, any claim for bodily injury or death); or (3) the manufacture, sale, distribution, or use of any of Client’s products or services violates the rights of any third parties or that the advertising, publicity, or promotion of Client’s products or services encourages or induces the violation of the rights of any third parties.
(c) Client shall pay Consultant all time charges and expenses (including reasonable attorneys’ fees) incurred by Consultant in connection with any subpoena, discovery demand, or other directive having the force of law or governmental inquiry, served upon Consultant or any of its affiliates that relates to Client, its business, or its industry that arises out of any litigation, proceedings, or investigations involving Client which are not covered by either party’s indemnification obligations hereunder.
(d) The indemnitee shall inform the indemnitor of any claim for which it intends to invoke indemnification and, at the indemnitor’s request, reasonably cooperate with the indemnitor in defending such claim. The indemnitor shall assume, at its sole cost and expense, the defense of such claim through its legal counsel selected and reasonably acceptable to the indemnitee, except that the indemnitee may at its option and expense select and be represented by separate counsel. The indemnitor shall have control over the suit or proceedings, including the right to settle; provided, however, the indemnitor will not, absent the written consent of the indemnitee consent to the entry of any judgment or enter into any settlement that: (1) provides for any relief other than the payment of monetary damages for which the indemnitor shall be solely liable; and (2) where the claimant or plaintiff does not release the indemnitee, its affiliates and its respective directors, officers, employees, agents and representatives, as the case may be, from all liability in respect thereof.
9. WARRANTIES AND LIABILITY
(a) Consultant agrees to perform its obligations in a workmanlike and professional manner consistent with generally accepted practices in Consultant’s industry and in compliance with all laws, rules and regulations that apply to Consultant in its role as a service provider to Client. EXCEPT AS SET FORTH IN THIS AGREEMENT OR A STATEMENT OF WORK, CONSULTANT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
b) Certain services may be dependent upon the products and services of third parties, such as media companies, search engines, ad serving companies, email service providers, social media platforms, mobile app platforms, and other vendors, services, or third parties not controlled by Consultant. While Consultant shall make commercially reasonable efforts to resolve any issues, Consultant shall not be liable for the acts or omissions of such third parties, including the failure of the products or services of such third parties to operate as intended. Notwithstanding the foregoing, Consultant shall have no obligation or responsibility with respect to third parties engaged by Client or with whom Client has required Consultant to work.
c) NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OR OTHER INDIRECT COSTS, FEES, OR CHARGES OF ANY KIND ARISING FROM ANY CLAIMS FILED HEREUNDER, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR BUSINESS OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. CLIENT AGREES THAT (i) CONSULTANT’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY RETAINED BY CONSULTANT AS ITS FEE, CHARGES OR COMPENSATION FOR THE SERVICES DURING THE MOST RECENT TWELVE (12) MONTH PERIOD WITH RESPECT TO WHICH THE CLAIM IS MADE, AND (ii) CLAIMS FOR DAMAGES MUST BE MADE BY CLIENT WITHIN ONE (1) YEAR OF THE INCIDENT TO WHICH THEY RELATE.
10. GENERAL
Independent contractors. Each Party to this Agreement is an independent contractor in relation to the other Party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties. Except as specifically set forth in this Agreement or otherwise approved in writing by a Party in advance, neither Party may bind the other Party to any commitments or obligations. Each Party shall ensure the timely disposition of all of its respective employee matters in connection with their organization, including but not limited to, employee benefits, insurance, withholdings, taxes and similarly related employee-related matters.
Non-solicit. Each Party acknowledges that the other Party’s employees are a valuable asset of such Party. Accordingly, each Party agrees that during this Agreement and for one (1) year thereafter, such Party shall not, directly or indirectly, knowingly recruit or solicit, or employ, engage as a consultant, or otherwise retain, any of the other Party’s employees who were involved in the performance of the Services, unless express approval to do so is requested in writing and such approval is granted. Each party agrees that the other Party’s remedy at law for a breach of this section shall be inadequate and therefore the non-breaching party shall be entitled to injunctive relief for such breach, without proof of irreparable injury and without posting bond, in addition to any other right or remedy it may have.
Survival. The provisions that by nature should survive termination of this Agreement as well as any accrued payment obligations shall survive the termination of this Agreement regardless of the reason or reasons therefore.
Assignment. This Agreement shall not be assignable by either Party without express written approval of the assignment by the non-assigning Party. Consultant may subcontract the performance of Services herein, provided that, it shall remain liable for the acts or omissions of such subcontractors.
Execution; Counterparts. This Agreement may be executed and signed by both Parties in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. Further, any digital signature applied to this document by way of DocuSign or some other digital signature platform that provides verification and/or authentication of signature shall be considered an original signature and have the same force and effect as an original signature.
Miscellaneous. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the Parties. The failure of either Party to partially or fully exercise any rights or the waiver of either Party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless expressly provided otherwise in this Agreement.
Notice. All notices, statements and/or formal communications to be delivered to either Party pursuant to the Agreement and this Section 10(g) shall be delivered to the Parties at their respective addresses.
Unless otherwise provided in the Agreement, all notices will be sent by certified mail, return receipt requested; facsimile, the receipt of which is confirmed by confirmation document; email, confirmed by email receipt confirmation notice; or nationally recognized overnight delivery service that provides evidence of delivery, and will be deemed to have been given at the time they are sent.
Force Majeure. Except for fees due hereunder, neither party shall be in breach of this Agreement or responsible for damages caused by delay or failure to perform, in full or in part, its obligations hereunder, provided that there is due diligence in attempted performance under the circumstances and that such delay or failure is due to circumstances substantially beyond the control of the party to be charged, including act of God, failure of telecommunications systems, strikes, government sanctioned embargo, act of war or terrorism, act of any public authority or sovereign government, civil disorder, delay or destruction caused by public carrier. Notwithstanding the foregoing, the unaffected party may terminate this Agreement if the force majeure event is not remedied within sixty (60) days. Choice of Law; Jurisdiction. This Agreement shall be governed by the laws of the State of North Carolina and each party submits to exclusive jurisdiction and venue in the courts located in Wake County, North Carolina.
Entire Agreement. This Agreement sets forth the entire agreement between the parties on this subject matter contained herein and supersedes all prior negotiations, understandings and agreements between the parties concerning this subject matter. No amendment or modification of this Agreement shall be made except by a writing signed by both parties. Any terms or conditions on a Client purchase order or similar document are void and have no legal effect.