ONLINE MARKETING MASTER SERVICES AGREEMENT


(VERSION 05.05.2021)

 

Client Name:  

Client Address:  

Client Phone:  

Client E-mail:  

*Signature required below.

 

 

I. DEFINITIONS

 

“Agency” means International Loops, LLC.

“Agreement” means this Online Marketing Master Services Agreement, including any amendments or supplements to this Agreement duly executed by both Parties.

“Client” means the Client so identified above.

“Confidential Information” means information that is not generally known or used by others and that is treated as confidential, other than Trade Secrets. This term includes, without limitation, all information regarding a Party’s customers and their accounts, all financial information, business plans, customer lists, procedures, formulas, discoveries, inventions, improvements, innovations, concepts, and ideas. This term also includes the specific provisions of this Agreement.

“Disclosing Party” shall refer to a Party disclosing its own Proprietary Information.

“Effective Date” means date upon which Agency is first in possession of a fully-executed (i.e., by both parties) Agreement.

“Intellectual Property Rights” shall mean any and all rights existing from time to time anywhere in the world under patent law, copyright law, trademark law, moral rights law, trade secrets law, or other similar proprietary rights.

“Party” means Agency and/or Client, the parties to this Agreement.

“Proprietary Information” means Trade Secrets and Confidential Information.

“Receiving Party” shall refer to a Party to whom Proprietary Information is disclosed.

“Services” shall refer individually and collectively to the professional services described in any and all Statement(s) of Work (“SOW”) executed by the Parties.

“Third Party” means, whether or not capitalized and whether used as a noun (“third party”) or an adjective (“third-party”), any person or entity not a party to this Agreement.

“Trade Secrets” means any and all trade secrets as defined by O.C.G.A. § 10-1-761(4), by 18 U.S.C. § 1839, and/or by any other applicable law as of the Effective Date of this Agreement.

“Work Product” means written reports, analyses, and other working papers or documents, deliverables, intellectual property, copyrightable works of authorship, and/or any other tangible work item prepared or delivered by Agency pursuant to its performance under the Agreement.

 

II. OVERVIEW & PURPOSE

Agency is in the business of providing online marketing services, including social media marketing and management and influencer marketing. Client wishes to retain Agency to provide online marketing-related services. This Agreement defines the general relationship between Client and Agency and sets forth the terms governing Agency’s provision of services to Client. For each discrete project undertaken by Agency, the services to be provided will be more particularly described in an SOW. Each SOW, as mutually agreed upon, will be executed by both Parties and incorporated at Addendum A to this Agreement, subject to the terms set forth below.

 

TERMS & PROVISIONS

 

1. SERVICES, MUTUAL RESPONSIBILITIES & WARRANTIES

 

Agency will perform in a timely, professional, and workmanlike manner consistent with accepted industry standards the Services set forth in the applicable SOW and any amendments thereto agreed upon in writing by the Parties. Changes in scope of the Services shall be made only in writing executed by authorized representatives of both Parties. Each Party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct its business as related to the exercise of its rights and the performance of its obligations under this Agreement.

Client shall at all times: (a) ensure that Client owns all right, title, and interest in, or has full and sufficient authority to use in the manner contemplated by this Agreement, any materials, marks, or data furnished by Client to Agency or that Client instructs or directs Agency to use; (b) comply with the terms and conditions of any licensing or other agreements that govern the use of material licensed or acquired from third parties by Agency on Client’s behalf; and (c) promptly provide all reasonable assistance requested by Agency in performing the Services, including prompt provision of all documents, samples, products, information, approvals, authorizations, decisions, or other material as Agency may from time and time request in order to carry out the Services in a proper and timely manner.

Notwithstanding any other provision herein, Client acknowledges and agrees that, to the extent that this Agreement includes specification of some number of likes, downloads, views, click-throughs, comments, shares, or other such Internet-related metrics, said specification is an aspirational goal or best estimate and does not in any way create a warranty, guarantee, or any other representation that said number will be reached or exceeded. Client further acknowledges that Agency does not warrant or guarantee any particular result or outcome as a result of Agency’s provision of Services hereunder.

Agency shall at all times comply with the materially pertinent federal, state, and local laws, ordinances, regulations, and governmental orders.

If Agency’s provision of Services hereunder involves the use of an influencer, endorser, or other such spokesperson, Agency shall contractually require all such influencers, endorsers, or other spokespeople to disclose their respective material connection to Client and to refrain from making unsubstantiated, untrue, or otherwise improper statements about Client and/or its products or services. Agency will also periodically monitor the online statements by the pertinent influencers, endorsers, or other spokespeople to ensure compliance herewith.

If Agency’s provision of Services hereunder involves the use of an influencer,

endorser, or other such spokesperson, Agency shall obtain Client’s prior written approval prior to Agency entering into agreements with or otherwise engaging a particular influencer, endorser, or other such spokesperson.

 

2. FEES & EXPENSES

 

2.1 Fees

The Fees for the Services described in a given SOW are set forth in that particular SOW. The initial SOW is attached at Addendum A and entitled “Statement of Work A.1.” Subsequent SOWs shall be attached sequentially at Addendum A and shall be entitled “Statement of Work A.2,” “Statement of Work A.3,” etc.

2.2 Payment Terms

All payments shall be made to Agency in U.S. dollars via the means/method specified in the pertinent SOW. Payment for the Services described in a given SOW is due in full immediately upon (i.e., concurrent with) Client’s execution of that SOW. Agency reserves the right to assess a finance charge and/or to charge monthly compounded interest, to the fullest extent permitted by Georgia law, for invoices that remain unpaid after thirty (30) days. Client also agrees to reimburse Agency for all expenses, including reasonable attorney fees, incurred in the collection of any overdue and unpaid invoices. If Agency’s invoices not disputed in good faith remain unpaid for more than thirty (30) days, Agency may also, at Agency’s discretion, suspend work on Client’s account and withhold any materials not paid for by Client. In the event any undisputed invoices become overdue, all subsequent payments will first be applied to the oldest unpaid invoices.

 

3. TERM & TERMINATION

 

3.1 Term

The term of this Agreement shall commence on the Effective Date and shall continue for so long as there remain or exist one or more open (i.e., not-yet- terminated) SOW(s).

3.2 Termination for Cause

 

3.2.1 Payment-Related Default

In the event that Client fails to pay any amount not disputed in good faith within forty-five (45) days of the due date, Client will have materially breached this Agreement. In such instance, Agency shall have the right immediately to terminate this Agreement if such payment remains unpaid ten (10) days after written notice from Agency to Client. Such termination will not impair or diminish Agency’s rights under Georgia law to seek legal or other damages.

3.2.2 Other Defaults

In the event that a Party fails materially to discharge any obligations or cure any material default under this Agreement or an applicable SOW (except for a default in payment to Agency as described immediately above) for a period of fourteen (14) days after the notifying Party (the “first Party”) has given the other Party written notice specifying such material failure or default, or in the event that the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtors’ moratorium, the first Party may terminate this Agreement “for cause.” Such termination will not impair or diminish the first Party’s rights to seek legal damages or equitable relief.

 

4. INDEMNIFICATION/LIMITATION OF LIABILITY

 

4.1 By Client

Agency relies on Client’s familiarity with Client’s business and cannot undertake to verify all the facts and/or materials supplied to Agency by Client. For these reasons, Client agrees to indemnify, defend, and hold harmless Agency and its employees, subcontractors, officers, directors, shareholders, licensees, and agents from and against all liabilities, losses, damages, or expenses, including reasonable attorney fees and costs, which Agency or such other indemnified party may incur as the result of any third-party claim, suit, or proceeding substantially arising out of or relating to: (i) the nature or use of Client’s products or services; (ii) Client’s negligence, gross negligence, or willful misconduct; (iii) Client’s breach of any provision of this Agreement; (iv) information, representations, reports, marks, data, materials, releases, photographs, graphics, or other tangible materials or intellectual property provided, supplied, or otherwise approved by Client; and/or (v) risks or restrictions which Agency advises Client of and in relation to which Client elects to proceed.

4.2 By Agency

Agency will indemnify, defend, and hold harmless Client and its employees, subcontractors, officers, directors, shareholders, licensees, and agents against all liabilities, losses, damages, or expenses, including reasonable attorney fees and costs, which Client or such other indemnified party may incur as the result of any third-party claim, suit, or proceeding substantially arising from Agency’s gross negligence or willful misconduct.

4.3 Use of Materials

Client acknowledges and agrees that after Agency has issued material or information to the press or to another third party, said material/information is no longer under Agency’s control. Agency therefore cannot be liable to Client or any third party for the use or republication of any materials or information by any media or other third party.

4.4 Limitation of Liability

In no event shall either Party be liable to the other for any incidental, indirect, consequential, special, or punitive damages, or lost profits, goodwill, savings, or use, of any kind or nature arising out of, or relating to the performance, breach, or termination of this Agreement, whether such damage or loss is foreseeable or not, whether that Party has been advised of the possibility thereof or not, and whether such liability is asserted on the basis of contract, tort, or otherwise. In no event shall Agency’s liability arising out of any Services provided hereunder or otherwise arising from or touching upon in any way this Agreement or the Services described herein exceed the fees paid by Client for the particular SOW out of which a claim for liability arose.

4.5 Third Party Litigation

In the event Agency is called upon to respond to or assist Client or a Client- related person or entity in connection with litigation commenced or threatened against Client or a Client-related person or entity, Agency will be entitled to payment for staff time charges and reimbursement of out-of-pocket expenses (including, but not limited to, reasonable attorney fees and all case-related disbursements) for services rendered and/or time spent by Agency in connection with such matters.

 

5. CONFIDENTIALITY; RETURN OF PROPRIETARY INFORMATION

 

If the Parties have previously executed a separate Confidentiality Agreement that they intend to govern their relationship and have attached that separate agreement as an exhibit hereto, that agreement shall control and no portion or provision of this Paragraph 5 shall have any force or effect. Otherwise, the following provisions shall apply:

In the performance of this Agreement, either Party may disclose to the other certain Proprietary Information. Both Parties acknowledge and agree that Proprietary Information (including, without limitation, all Intellectual Property Rights inherent therein) will remain the sole and exclusive property of the Disclosing Party or a Third Party providing such information to the Disclosing Party. The Receiving Party agrees to hold the Proprietary Information disclosed by the Disclosing Party in the strictest confidence and not, directly or indirectly, to copy, use, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information for any purpose whatsoever other than as expressly provided by this Agreement. The disclosure of Proprietary Information does not confer upon the Receiving Party any license, interest, or rights of any kind in or to the Proprietary Information, except as otherwise expressly provided under this Agreement or in an SOW. Subject to the terms set forth herein, the Receiving Party: (i) may not disclose Proprietary Information to a Third Party without the prior written consent of the Disclosing Party; and (ii) will protect the Proprietary Information of the Disclosing Party with at least the same degree of protection and care that the Receiving Party uses to protect its own Proprietary Information, but in no event less than commercially- reasonable care. With regard to Trade Secrets, the obligations in this Section will continue for so long as such information constitutes a Trade Secret under Georgia law. With regard to Confidential Information, the obligations of this Section will continue for the Term of this Agreement and for a period of nine (9) years thereafter. However, nothing in this Section will prohibit or limit the Receiving Party’s use of information if: (i) at the time of disclosure hereunder such information is generally available to the public; (ii) after disclosure hereunder such information becomes generally available to the public, except through breach of this Agreement by the Receiving Party; (iii) the Receiving Party can demonstrate such information was in its possession prior to the time of disclosure by the Disclosing Party; (iv) the information becomes available to the Receiving Party from a Third Party which is not legally prohibited from disclosing such information; (v) the Receiving Party can demonstrate the information was developed by or for it independently without the use of Proprietary Information; and (vi) disclosure is required under applicable law or regulation.

Upon termination of this Agreement for any reason, each Party will immediately return to the other Party, or destroy, all Proprietary Information of the other Party and all copies thereof and will provide the other Party with a signed statement certifying compliance with this paragraph. Notwithstanding the foregoing, neither Party shall be required to return or destroy: (i) Proprietary Information which the Receiving Party requires for its own business records; and/or (ii) backup or archival copies of Proprietary Information which are not readily available for return or destruction (such as Proprietary Information which is stored on backup media that also contains other unrelated information). In the event such return or destruction is not feasible, the Party retaining Proprietary Information will extend the protections of this Agreement to the retained information and limit further uses and disclosures to those purposes that make the return or destruction of the information not feasible. This Section shall survive the termination or expiration of the Agreement.

 

6. OWNERSHIP OF MATERIALS

 

Subject to any third-party rights, restrictions, limitations, or other obligations (including, but not limited to, any such rights belonging to an influencer or other endorser retained by Agency in relation to this Agreement or a related SOW), Agency acknowledges and agrees that, upon full payment of all sums due to Agency under this Agreement, all photography, brochures, manuals, film, signage, and other materials (collectively referred to as “Materials”) generated by Agency in accordance with the Services provided on Client’s behalf shall be deemed a “work made for hire” and shall, between Client and Agency, be Client’s exclusive property. Notwithstanding the foregoing, Client acknowledges that Agency retains ownership of all works of authorship created by Agency or on behalf of Agency prior to or separate from the performance of Services under this Agreement, or any enhancements or modifications made during performance to Agency’s generic and business information, tools, methodologies, code, proprietary information/services, media lists, and third-party relationships held by Agency (“Agency Tools”). Moreover, in relation to all Materials, Agency shall have and is hereby granted an unlimited, perpetual, worldwide license in and to those Materials except to the extent that the Materials contain or include Client’s Proprietary Information.

 

7. OTHER PROVISIONS

 

7.1 Relationship of the Parties

This Agreement shall not be construed to create any employment relationship, partnership, or joint venture relationship. Except as is expressly set forth herein, neither Party shall have the right to enter into any commitment or agreement binding on the other Party without the other Party’s express, written permission.

7.2 Binding Effect

This Agreement will be binding upon and inure to the benefit of the Parties, heir legal representatives, permitted transferees, successors, and assigns as permitted by this Agreement.

7.3 Joint Drafting of Agreement

This Agreement represents the combined efforts and input of both Parties hereto, and neither shall be considered the sole “draftsperson” for purposes of any rule of construction against such draftsperson.

7.4 Headings for Convenience Only

The headings of the paragraphs of this Agreement are for convenience only and shall not be deemed to control the meaning of any paragraph.

7.5 Assignment

This Agreement and all rights and obligations may not be assigned in whole or in part by either Party without the prior express written consent of the other Party.

7.6 Force Majeure

Except for Client’s payment-related responsibilities, neither Party will be liable for failure to perform any of their respective obligations hereunder if such failure is caused by an event outside its reasonable control, including, but not limited to, acts of God, terrorism, war, or natural disaster.

7.7 No Waiver

No delay or failure to exercise any right hereunder and no partial or single exercise thereof will be deemed to constitute a waiver of such right or any other rights hereunder. No consent to or forgiveness of a breach of any express or implied term of this Agreement will constitute consent to or forgiveness of any prior or subsequent breach.

7.8 Severability

If any provision of this Agreement is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will be valid and enforceable to the fullest extent permitted by applicable law.

7.9 No Third-Party Beneficiaries

Except as expressly set forth herein, nothing in this Agreement is intended to confer, nor shall anything herein confer upon any person other than the Parties hereto and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.

7.10 Governing Law and Forum

This Agreement will be governed by and construed in accordance with the laws of the State of Georgia without regard to its conflict of laws rules. Any action at law, suit in equity, or other judicial proceeding concerning, relating to, or touching upon in any way this Agreement or the subject-matter hereof, shall be brought, if at all, only in a state or federal court of proper subject matter jurisdiction in Cobb County, Georgia. Both Parties acknowledge the right of the specified courts to assert personal jurisdiction in any such action over all Parties and waive and release now and forever any defense to said assertion of personal jurisdiction that might otherwise exist.

7.11 Entire Agreement

This Agreement (along with all appended exhibits hereto) represents the entire understanding between the Parties hereto with respect to the subject matter set forth herein, and supersedes all other negotiations, agreements, contracts, commitments, and understandings, whether verbal or written, between the Parties. Neither Party has made or makes any express or implied representation or warranty, all of which are expressly disclaimed. Each Party acknowledges that it has not relied upon any representation or warranty not expressly appearing in this Agreement (including the executed SOW(s)). No modifications, additions, or amendments to this Agreement will be effective unless made in writing and signed by duly authorized representatives of both Parties. In the event this Agreement is translated, the English-language version will control.

7.12 Notices

Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given: (i) if by hand delivery, upon actual delivery; (ii) if mailed, on the actual date of delivery as evidenced by a “certified mail, return receipt requested” card; or (iii) if by next day or overnight delivery service, upon actual delivery. All notices shall be addressed and directed as follows:

For Agency:
International Loops, LLC
c/o Wellborn & Wallace, LLC
1218 Menlo Dr. NW, Suite E
Atlanta, GA 30318

For Client:

 

7.13 Non-Binding Dispute Resolution

Should any dispute occur between the Parties hereto that arises from or relates in any way to this Agreement, other than a dispute that in the actual and reasonable judgment of a Party involves the need for a temporary restraining order and/or a preliminary injunction, the Parties shall, in relation to said dispute and acting in good faith: (1) in the case of the complaining Party, give written notice of the complaint or dispute and, in the case of the responding Party, respond in writing within ten (10) business days after its receipt of the complaining Party’s notice; (2) confer by phone within ten (10) business days of the complaining Party’s receipt of the responding Party’s written response; and (3) if requested thereafter by either Party, confer in person at a mutually agreed upon location. Upon completion of this process and/or the failure or refusal of the opposing Party to complete this mandatory pre-litigation process, each Party may avail itself of all remedies, including the filing of a lawsuit that complies with the pertinent provisions of this Agreement.

7.14 Representations and Warranties

Each Party hereby represents and warrants that such Party’s execution and performance of this Agreement does not: (i) conflict with or result in a violation or breach of any contract or obligation to which such Party is a party; and/or (ii) result in a violation of any laws applicable to such Party.

7.15 Amendments

This Agreement may not be amended, supplemented, or otherwise modified except by a written agreement signed by the Parties or as is otherwise expressly contemplated herein.

7.16 Counterparts; Electronic Delivery

This Agreement, and any amendment hereto or waiver hereof, may be signed in counterparts, each of which will constitute an original, and all of which together will constitute one and the same instrument. Any signature may be delivered by PDF or other electronic means, which will have the same effect as an original signature.

7.17 Publicity; Disclosure of Association

Except as otherwise necessary for Agency to provide the Services to Client as described in this Agreement, all media releases, public announcements, and public disclosures by either Party relating to this Agreement or containing the name or the logo of the other Party, including, without limitation, promotional or marketing material, shall be coordinated with and approved by the other Party in writing (e-mail form acceptable) prior to the release thereof. Notwithstanding any other provision of this Section or elsewhere in the Agreement, either Party may make disclosures relating to this Agreement or the name or the logo of the other Party without consent as required by legal, accounting, and/or regulatory requirements beyond the reasonable control of the releasing Party. Additionally, Agency may make disclosures relating to this Agreement or include Client’s name or Client’s logo in Agency’s general representative lists or roster of clients, and success stories, award shows, or case studies.

7.18 Non-Circumvention

If and only if Client is the owner or operator of the advertised social media page/account (as opposed to a broker or agency acting on behalf of a variety of such clients), then – during the term of any given SOW and for the twelve (12) month period immediately following its completion – Client agrees that it may, whether directly or indirectly, procure or receive additional services or endorsements from any influencer, spokesperson, endorser, sponsor, or other such promotor who provided any services or endorsements pursuant to that SOW, if at all, only through Agency.

7.19 Attorney Fees

Should any litigation or other legal proceeding be commenced between the Parties concerning their rights or obligations under this Agreement, the Party substantially prevailing in such litigation or arbitration shall be entitled, in addition to such other relief as may be granted, to its reasonable attorney fees and costs.

7.20 Survival

The rights and obligations of the Parties hereto which by their nature must survive termination or expiration of this Agreement in order to achieve their fundamental purposes shall survive any termination or expiration of this Agreement.

 

 

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Signed by Jennifer Brooks
Signed On: May 7, 2021


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Document name: ONLINE MARKETING MASTER SERVICES AGREEMENT
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May 7, 2021 5:07 pm EDTONLINE MARKETING MASTER SERVICES AGREEMENT Uploaded by Jennifer Brooks - [email protected] IP 91.214.125.25
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