The purpose of this agreement is to more closely define the agency/client relationship between Kellogg Marketing, LLC dba Curious Jane™ (“Agency”) and you (“Client”).
As referenced in our Proposal document and acknowledged by you, our Client, the provisions in this Master Terms and Conditions Agreement are hereby made an indispensable part of your Proposal and your contract with us for your Project, and this Agreement, along with the terms set forth in the Proposal, will govern our Agency/Client relationship.
WHEREAS, Client desires to retain Agency to provide certain services as set forth in the Proposal document and upon these Master Terms and Conditions hereinafter set forth, and Agency is willing to perform such services.
In consideration of the mutual covenants and agreements below, the Parties agree as follows:
- “Agency Content” means all materials, information, documents, images, and other creative content created, developed, and provided by Agency and not assigned to Client and not forming part of the Final Works.
- “Agency Tools” means all design tools developed and/or utilized by Agency in performing the Services, including without limitation pre-existing and newly developed software including source code, web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements
- “Agreement” means the content of this Master Terms and Conditions document, the Proposal document(s), which is/are made an indispensable part of the Agreement, and all exhibits, schedules or attachments hereto.
- “Client Content” means all materials, information, documents, images, and other creative content provided by Client and not otherwise created or developed by Agency for use in the preparation of and/or incorporation into the Deliverables.
- “Deliverables” means the services and work product specified in the Proposal document(s) to be delivered by Agency to Client as set forth in the Proposal and as used in the Project.
- “Final Deliverables” means the final versions of Deliverables provided by Agency and accepted by Client.
- “Final Works” means all creative content developed by Agency, or commissioned by Client, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, modiﬁcations to Client Content, and Agency’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
- “Preliminary Works” means all creative content including, but not limited to, concepts, sketches, visual presentations, or other preliminary designs and documents developed by Agency and which may or may not be shown or delivered to Client for consideration but do not form part of the Final Works.
- “Project” means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal(s).
- “Services” means all services and the work product to be provided to Client by Agency as described and otherwise further deﬁned in the Proposal.
- “Third Party Materials” means proprietary third part materials which are incorporated into the Final Deliverables, including without limitation, certain third-party stock photography, computer code, and other content.
- “Working Files” means all underlying work product and digital files utilized by Agency to create the Preliminary Works and Final Works other than the format comprising the Final Deliverables.
II. Agency Services
- General Provisions
Agency agrees to create and implement a franchise marketing plan as set forth in the Proposal document(s).
Note: It is anticipated that all creative materials for use by Agency for the Project will be provided by Client (“Client Content”). If Agency is to develop creative material, there is an additional per campaign creative fee as set forth in the Proposal document(s).
- Preferred Agency Relationship
Agency shall act as Client’s preferred vendor in providing materials and services required to design and develop website(s) and produce digital and social advertising and/or marketing materials for and as authorized by Client, including but not limited to the work set forth in the Proposal.
Agency is an independent contractor, not an employee of Client or any company afﬁliated with Client. Agency shall provide the Services under the general direction of Client, but Agency shall determine, in Agency’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. All rights, if any, granted to Client are contractual in nature and are wholly deﬁned by the express written agreement of the parties and the various terms and conditions of this Agreement.
- Mutual Cooperation and Confidentiality
Agency agrees to devote its best efforts to Client’s interests, and to endeavor in every way to make Client’s advertising successful, and Client agrees to aid Agency in doing so by making available to Agency needed information pertaining to Client’s business and to cooperate with Agency in expediting Agency’s work. Agency will take every precaution to safeguard any and all information provided to Agency that is considered confidential by Client (not for public knowledge), and maintain confidentiality through such time as said information is cleared by Client for open access. Client agrees to label any Client Content as “CONFIDENTIAL” when providing it to Agency if Client wishes Agency to treat such content as confidential.
Agency retains the right to reproduce, publish and display the Deliverables in Agency’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
- Planning and Measuring Results
To aid in a better flow of ideas, budgeting and overall strategies, Agency agrees to communicate with Client regularly. As part of the strategic planning process, it is necessary that all research and campaign results pertaining to marketing, promotions and advertising be shared between Agency and Client on a continuing basis, and Client agrees to make good faith efforts to promptly respond to Agency’s questions and communications in order to satisfactorily complete the Project as outlined in the Proposal.
- Approval of Expenditures
If not on retainer, Agency agrees to estimate the cost of individual Projects in advance, such as marketing collateral, branding creative, etc. These estimates will be submitted to Client in the Proposal for approval prior to job commencement, and will be revised and remitted as required during Project’s progress. Agency’s work on Projects will commence only upon receipt of written or email authorization from Client.
- Care of Client’s Property and Client Content
Agency will keep in its care, for a reasonable length of time, Client Content entrusted to Agency as Client’s property and will use reasonable precaution to secure their return from third parties, if applicable.
- Failure of Suppliers to Perform
Client acknowledges that Agency has no control over online platforms such as, but not limited to, Google or Facebook. Agency will endeavor to the best of its knowledge and ability to guard against any loss to Client through failure of platforms to properly execute their commitments, but Agency shall not be held responsible for any failure on the third-party’s part.
- Responsibility of Client
Client shall be responsible for the accuracy, completeness and propriety of all Client Content and any additional information concerning Client’s programs and services that Client furnishes to Agency in connection with the performance of this agreement.
- Ownership of Material and Deliverables
- Client acknowledges and agrees that all work product, concepts, ideas, strategies and materials presented for consideration by Agency and not considered Client Content or otherwise purchased from Agency by Client, including but not limited to Preliminary Works, are and will remain the sole property of Agency and shall be deemed Agency Content.
- Rights in the Final Deliverables
- Final Works. Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, Agency assigns to Client all of Agency’s Copyrights in and to the Final Works. Agency shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment, and Client shall reimburse Agency for Agency’s reasonable time and out-of-pocket expenses in connection therewith.
- Trademarks. Client shall have sole responsibility for ensuring that Trademarks do not infringe the rights of third parties, and Client shall indemnify, save and hold harmless Agency from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging trademark infringement, or arising out of Client’s failure to obtain trademark clearance or permissions, for use of Trademarks.
- Client Content. Client Content, including pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all trademark, trade secrets, patents, Copyrights, and other rights in connection therewith. Client hereby grants to Agency a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Agency’s performance of the Services and promotional uses of the Deliverables as authorized in this Agreement.
- Third Party Materials. Intellectual property rights in Third Party Materials shall be owned by the respective third parties. Agency shall inform Client of all Third Party Materials to be procured by Agency that Client may need to license at Client’s own expense, and unless otherwise arranged by Client, Agency shall obtain a license for Client to use the Third Party Materials consistent with the usage rights granted herein. Client shall indemnify, save and hold harmless Agency from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Works at Client’s request.
- Rights Reserved to Agency
- Preliminary Works/Working Files/Agency Content. Agency retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works, Working Files, and Agency Content.
- Agency Tools. Agency Tools and all intellectual property therein, including Copyrights, shall be owned (or licensed as applicable) solely by Agency. Agency hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s publisher, web hosting or Internet service providers), perpetual, worldwide license to use the Agency Tools solely with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any Agency Tools comprising software or technology.
- Client agrees to indemnify, save and hold harmless Agency from any and all damages, liabilities, costs, losses or expenses, including attorneys’ fees, arising out of any claim, demand, or action by a third party arising out of Client Content or any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Agency shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Agency provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Agency in providing such assistance.
- Agency agrees to indemnify and hold harmless Client from and against all losses awarded against a Client in a final judgment based on a claim that any of the Services or Deliverables or Client’s receipt or use thereof infringes any intellectual property right of a third party arising under the Laws of the United States; provided, however, that Agency shall have no obligations under this Section with respect to claims to the extent arising out of:
- any Client Content or any instruction, information, designs, specifications or other materials provided by Client in writing to Agency;
- use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Agency in writing, if the infringement would have been avoided by the use of the Deliverables not so combined; or
- any modifications or changes made to the Deliverables by or on behalf of any person or entity other than Agency or its employees or contractors.
- The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any claim or action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such claim or action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any claim or action in a manner that adversely affects the rights of the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section shall not relieve the indemnifying party of its obligations under this Section except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense
- Misleading Advertising
Nothing herein contained shall be deemed to require that Agency undertake any Project, or prepare or publish any advertising or article, which, in Agency’s judgment, would be misleading, indecent, libelous, unlawful or otherwise prejudicial to Client’s interests or to Agency’s.
III. Agency Compensation
- Agency Fee
- All costs and fees for projects, marketing and advertising on behalf of the Client will be clearly communicated in writing via the Proposal document(s) and require Client’s approval. This includes any subsequent revisions and/or additions to the scope of the Agreement or Project. The Agency reserves the right to review its fees on an annual basis. Should the fee structure for a Project require adjustments from the Proposal, Agency will communicate changes and/or revisions to the Client for approval with a 90-day advance notice. Client understands and agrees that should Agency determine that a fee structure adjustment is required to complete a Project, the failure of Client to approve the adjustment may result in an ability of Agency to complete the Project, and Client agrees to hold Agency harmless in such an event.
- Once the Project is in process, should Client revise, amend or alter the scope of the project that, in Agency’s sole and reasonable discretion, deviates significantly from the original scope of work, Agency will suspend all work and submit a revised Proposal with updated scope and any applicable fees to the Client for authorization. The project will recommence once Client approves the revised Proposal. Client understands and agrees that should Agency determine Client’s changes to an in-process Project requires an updated or otherwise adjusted fee structure, the failure of Client to approve the adjustment may result in an ability of Agency to complete the Project, and Client agrees to hold Agency harmless in such an event.
- Charges for Materials and Services Purchased
Materials and services purchased on Client’s behalf including, but not limited to, photography, mechanical art, fonts, illustration, printing, collateral materials, signage, model/talent fees and props, will be billed to Client by Agency in addition to the monthly retainer or authorization, if applicable. All such cost charges due to Agency will be approved by Client in advance. Client recognizes and agrees that a failure to approve such costs may result in an inability to perform the Project work.
IV. Terms of Payment
Project pricing is based solely on Agency’s fees and not outside costs for materials and other expenses. The Client is solely liable for payment for costs and expenses, including but not limited to media and materials and services purchased by Agency on Client’s behalf.
- All fees will be invoiced monthly at 30-day net term, with the monthly spends for the Digital and Social Media Marketing Plan invoiced one month in advance. Payments that are delinquent for over ten (10) days will be subjected to an additional fee, or, campaign suspension. Agency will charge interest on such past due amounts at the rate of 1.5% per month calculated daily and compounded monthly, or, if lower, the highest rate permitted under applicable law. In no event shall any interest, late fees or other amounts individually (or in the aggregate to the extent such amounts are aggregated under applicable law) be greater than the highest rate permitted by relevant law. To expedite payment process, Client may request payment by credit card or ACH, including authorizing Agency to automatic debiting as an option.
- In the case of large production projects, such as branding, monies will be required in advance with final billing or adjustments billed (or credited) upon completion of the project. Via the Proposal, Agency shall provide Client with a quote of total budget for any such large production projects. Prior to commencing work on any such project, Client shall pay Agency one-half of the total amount of any such authorized projects, with the balance due upon completion and acceptance by Client.
- Payments will be credited ﬁrst to overdue payments and late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Agency reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes, if applicable.
V. WARRANTIES AND REPRESENTATIONS
- By Client
Client represents, warrants and covenants to Agency that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content is accurate, legal, conforms to ethical standards of the Client’s industry, does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
- By Agency
(a) Agency hereby represents, warrants and covenants to Client that Agency will provide the Services identiﬁed in the Agreement in a professional manner and in accordance with all reasonable professional standards for such services. (b) Agency further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Agency and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Agency, Agency shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufﬁcient for Agency to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Agency’s knowledge, the Final Works provided by Agency and Agency’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identiﬁed in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Agency shall be void. (c) Except for the express representations and warranties stated in this Agreement, Agency makes no warranties whatsoever. Agency explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or ﬁtness for a particular purpose or compliance with laws or government rules or regulations applicable to the Project.
- LIMITATION OF LIABILITY. The services and the work product of Agency are sold “as is.” In all circumstances, the maximum liability of Agency, its directors, ofﬁcers, employees, design agents and afﬁliates to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net proﬁt of Agency from the Client’s Project. In no event shall Agency be liable for any lost data or content, lost proﬁts, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Agency, even if Agency has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
VI. Termination of Agreement
- Notice of Termination
The effective date of this agreement shall continue in force for the duration as defined in Proposal, with automatic renewal after the stated Initial Period. Either party may terminate this agreement after the completion of the Initial Period with a written notice at least thirty (30) days in advance (“Termination Notice”). Termination of this agreement shall not affect the Client’s responsibility for payment of any fees due or agreed upon prior to the effective date of termination, and Client agrees to assume Agency’s financial, legal, and all other liability for all commitments, and to reimburse Agency for any out-of-pocket losses Agency may sustain therefrom, and for all expenses incurred in connection with Client’s advertising or marketing programs on Client’s authorization, and to pay Agency any charges relating thereto, in accordance with the provisions of this agreement
- Placing Advertising and Compensation During Period of Termination Notice
- The rights, duties and responsibilities of the Parties shall continue in full force during the at least thirty (30) day period of Termination Notice, and Agency shall be entitled to all fees, commissions and any other compensation relating to such advertising.
- After the expiration of the Termination Notice period, any non-cancelable contract made on Client’s authorization, such as long-term contracts that extend beyond the 30-day cancellation window, and still existing at the expiration of the agreed-upon interval following Termination Notice, shall be carried to completion by Agency and paid for by Client unless mutually agreed in writing to the contrary, in accordance with the provisions herein.
- Payments for Purchases and Work Done
Any materials and or services Agency has committed to purchase for Client’s account, or with Client’s approval (or any uncompleted work previously approved by Client either specifically or as part of a plan), shall be paid for by Client in accordance with the provisions of this Agreement prior to the assignment or transfer of any Deliverables to Client.
- Disposition of Client’s Property
Upon the termination of this agreement, and full payment of any sums due Agency, Agency shall transfer, assign, and make available to Client, or Client’s representative, all copy, artwork and other physical embodiments of the Deliverables provided by Client hereunder and which is then in Agency’s possession or control. Client shall be responsible for all costs incurred by Agency for the transfer of Client’s work, and shall also pay Agency its hourly rate of $175.00 for any time incurred by Agency in gathering this work.
- Effect of Termination
Upon termination, Agency shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Agency or Agency’s agents as of the date of termination, whichever is greater; and Client shall pay all expenses, fees, out of pockets together with any additional costs incurred through and up to, the date of cancellation. In the event of termination for convenience by Client, Client shall pay in addition to the above an early termination fee equal to 25% of the total Project fee as set forth in the Proposal, the rights granted to Client in Section II(9)(b) shall not be effective, and Client shall not have rights to use Deliverables except upon written consent from Agency provided after such termination.
- In the event of termination for convenience by Agency or for cause by Client, and upon full payment of compensation as provided herein, Agency grants to Client such right and title as provided for in Section II(9) of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
- Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Conﬁdential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
VII. GENERAL PROVISIONS
- Modification/Waiver. This Agreement may be modiﬁed by the parties. Any modiﬁcation of this Agreement must be in writing, except that Agency’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
- All notices to be given hereunder shall be transmitted in writing via electronic mail sent to: ClientServices@curiousjane.com. Notice shall be effective upon receipt.
- No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party except that this Agreement may be transferred or sold as part of a transfer or sale of the assigning party’s entire business or portion thereof relating to the Project.
- Force Majeure. Agency shall not be deemed in breach of this Agreement if Agency is unable to complete the Services or any portion thereof by reason of ﬁre, earthquake, ﬂood, hurricane or other severe weather, labor dispute, act of war, terrorism, riot or other severe civil disturbance, or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Agency’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Agency shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
- Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Florida without regard to its conﬂict of law provisions or the conﬂict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, any legal suit, action or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in (or servicing) Polk County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Agency will have no adequate remedy at law in the event Client uses the Deliverables in any way not permitted hereunder, and hereby agrees that Agency shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
- Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
- This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conﬂict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. Any other ambiguities shall be resolved with the most reasonable and legally valid construction, without regard to authorship of such provisions. This Agreement comprises this Terms and Conditions document, the Proposal, and any other document attached as an exhibit hereto.
By their execution below, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature below, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.