WHEREAS, Client desires to engage GCommerce to provide certain digital marketing services pursuant to (the “Digital Marketing Services Agreement”) Client has accepted pursuant to the terms and conditions of this Agreement; and
WHEREAS, GCommerce desires to be engaged by Client to provide certain digital marketing services pursuant to (the “Digital Marketing Services Agreement”) the terms and conditions of this Agreement; and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Client and GCommerce agreed to be bound by the Terms & Conditions agree to the Terms and Conditions of the Digital Marketing Services Agreement as follows:
TERMS AND CONDITIONS
Subject to the terms and conditions of this Agreement, Client hereby engages GCommerce and GCommerce agrees to render the Services to Client as defined in the GCommerce Digital Marketing Services Agreement. Scope of work and deliverables may be added, modified, or removed from time to time upon the written agreement of the Parties as of the date of execution by authorized representatives of the Parties.
2. SERVICE FEES AND PAYMENT TERMS
2.1 Service Fees & Invoices. In consideration of GCommerce’s performance of the Services as contemplated and agreed upon hereby, Client agrees to pay GCommerce the fees under the payment terms as contained herein. The fees are due and payable within thirty (30) days of the date of the invoice and prior to any work beginning and will be deemed overdue if unpaid thereafter. Client shall have seven (7) days from the date the invoice was received to dispute any charges included on the invoice. If Client does not dispute any charge in writing within such seven (7) day period, such charges shall be deemed to have been accepted by Client and shall be due and payable to GCommerce as provided herein. Except for charges being disputed reasonably and in good faith in accordance with the terms and conditions of the Agreement and as defined in the Statement(s) of Work, any amounts that are unpaid after the due date shall be subject to an interest rate of 3% per month, or the highest rate allowed by law if lower, from the due date until such amounts are paid. Without limiting its rights or remedies, GCommerce shall have the right to suspend the Services if payment is not received within thirty (30) days of the invoice date. Client shall pay to GCommerce fees in the amounts as defined in Client’s Digital Marketing Services Agreement (the “Digital Marketing Service Fees”, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
2.2 Digital Marketing Service Fees and Payment Terms. GCommerce will invoice client the first three (3) months of Digital Marketing Service Fees, and those Service Fees will be payable in advance of any work beginning. GCommerce will provide Client ongoing Digital Marketing Service Fee invoices on a quarterly basis (every 3 months) forty-five (45) days prior to the beginning of each quarter, unless otherwise provided in the Digital Marketing Services Agreement.
2.3 Media Expense and Payment Terms. Client acknowledges and agrees that it is responsible for all costs and expenses associated with GCommerce’s performance of the Services that Client has pre-approved in writing, including, without limitation, any marketing, Internet, or online media expenses. Pre-approved Client media expenses may include, but not be limited to, paid search media, display advertising media, social advertising media, and any other pre-approved 3rd party direct media buys. Client agrees that GCommerce will be paid a media placement fee of 10% for any such media buys that GCommerce places and manages to include, but not be limited to, paid search media, display advertising media, social advertising media, and any other pre-approved 3rd party direct media buys.
- Media Expense Payment Terms. GCommerce will invoice Client the first three (3) months estimated, and Client pre-approved, media buys and those estimated media expenses will be payable by Client in advance of any media buys being placed by GCommerce on behalf of and in benefit of Client. GCommerce will provide ongoing invoices on a quarterly (every 3 months), 45 days prior to the beginning of each quarter. GCommerce will provide a statement of actual media expenses incurred by Client over the previous quarter (previous 3 months) and a reconciliation and adjustment of actual media expense to previously paid estimated media expense. The estimated media expense invoices are due and payable within thirty (30) days of the date of the invoice. Client shall be responsible for all taxes imposed on the media buys, other than taxes measured by any net income derived by GCommerce. Without limiting its rights or remedies, GCommerce shall have the right to suspend the media buys if payment is not received prior to the first month beginning in which the media expenses will be incurred.
- Alternative Media Expense Payment Terms. As an alternative to paying by check of the pre-payment of three (3) months estimated media expense, Client may choose to place a credit card on file with GCommerce, or establish ACH payments to pay for any pre-approved media expense fifteen (15) days in advance of each month beginning in which such media will be placed and incurred by GCommerce on behalf and in benefit of Client. Should Client choose to pay by credit card, Client agrees to pay a 3% credit card processing fee for all transactions. Should Client’s credit card or ACH payment not clear prior to the month beginning in which such media will be placed and incurred by GCommerce on behalf and in benefit of Client, GCommerce will pause all planned and pre-approved media buys at the conclusion of the month in which Client has prepaid for such media. Media placement will resume once all outstanding media invoices are paid in full to GCommerce.
2.4 General & Travel Expenses. Client shall pay GCommerce’s expenses incurred in connection with the Digital Marketing Services Agreement as follows: (a) incidental and out-of- pocket expenses including but not limited to costs for phone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus GCommerce’s standard markup of ten (10) percent, and, if applicable, a mileage reimbursement at $0.655 per mile; and (b) travel expenses including air transportation, meals, and lodging, incurred by GCommerce with Client’s prior approval and acceptance in writing.
3. TERM & TERMINATION
The Term shall commence upon the Effective Date as defined in Client’s Digital Marketing Services Agreement and unless sooner terminated in accordance with the terms hereof, shall continue for the period of two (2) years (the “Initial Term”). The Initial Term will be automatically extended for successive two (2) year periods (each an Extended Term, and together with the Initial Term, the “Term”) on the terms and conditions set forth herein, unless either party provides written notice not to extend at least ninety (90) days prior to the conclusion of the Term. For each Extended Term, Client agrees that the Service Fee will be increased by 5% of the Service Fee for the prior Term. Upon termination of the Services, Client will pay GCommerce, in accordance with the terms of the Digital Marketing Services Agreement, for all services performed and expenses incurred through the effective date of termination. In addition, if Client terminates the Services prior to the expiration of any Term (each an “Early Termination”), Client agrees to pay to GCommerce liquidated damages equal to the Total Fees as defined on Client’s Digital Marketing Services Agreement that would have been payable to GCommerce through the remainder of the Term, in addition to all other amounts due and payable hereunder, within 30 days of such Early Termination. The Services may be terminated without premium or penalty at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
- becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
- breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within thirty (30) days from receipt of written notice of such breach.
Client agrees to cooperate with GCommerce in its performance of the Services. Without limiting the foregoing, Client agrees to promptly provide to GCommerce any and all information regarding Client’s business as GCommerce may request as related to the performance of the Services. Client agrees to and provides the right to GCommerce to collect Client’s website visitor data profiles, analytics and user sessions to create travel consumer audience profiles for the purposes of marketing.
5. NO WARRANTY
Client acknowledges that GCommerce’s obligation hereunder is limited to providing the Services, and GCommerce shall not be deemed to have guaranteed any results or the achievement of any certain performance levels as a result of the Services. GCommerce MAKES NO WARRANTY OF ANY KIND AS TO CLIENT’S FINANCIAL PERFORMANCE OR ANY RESULTS THAT MAY BE OBTAINED FROM THE SERVICES, OR THE PARTIES BUSINESS RELATIONSHIP AS CONTEMPLATED BY THE DIGITAL MARKETING SERVICES ORDER FORM AND AGREEMENT.
6. DISPUTES RELATING TO THE SERVICES
Client agrees to raise any concerns or issues it may have relating to the Services within ten (10) days of the date that such Services are performed by GCommerce. If Client does not raise any concerns or issues within such ten (10) day period, then such Services received shall be deemed acceptable by Client.
7. REPRESENTATION OF CLIENT; INDEMNIFICATION
Client represents that it is not presently subject to an agreement or any other legal obligation that would prevent it from signing the Digital Marketing Services Agreement or from performing its obligations hereunder. Client agrees to indemnify GCommerce and its heirs, successors, agents, employees and assigns from any and all losses, damages, liabilities, costs and expenses (including attorneys’ fees) any of such indemnified parties may incur as a result of any third-party claim that arises out of (i) GCommerce’s performance of the Services as provided herein or as requested by Client, or (ii) the fraud, gross negligence or willful misconduct of Client. GCommerce agrees to indemnify Client and its heirs, successors, agents, employees and assigns from any and all losses, damages, liabilities, costs and expenses (including attorneys’ fees) any of such indemnified parties may incur as a result of any third-party claim that arises out of the fraud, gross negligence or willful misconduct of GCommerce. The provisions of this Section 7 shall survive the termination of the Digital Marketing Services Order Form and Agreement for any reason.
8. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL GCOMMERCE BE LIABLE TO CLIENT WITH RESPECT TO ANY SUBJECT MATTER OF THE DIGITAL MARKETING SERVICES ORDER FORM AND AGREEMENT, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS; OR (II) ANY AMOUNTS THAT IN THE AGGREGATE ARE IN EXCESS OF THE AMOUNTS PAID TO GCOMMERCE BY CLIENT HEREUNDER, REGARDLESS OF WHETHER GCOMMERCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. CONFIDENTIALITY “CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with Client’s Digital Marketing Services Agreement, it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Digital Marketing Services Agreement except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party or is otherwise properly received from a third-party without an obligation of confidentiality.
10. CHANGES & TIMING
10.1 General Changes. Unless otherwise provided in Client’s Digital Marketing Services Agreement, and except as otherwise provided for herein, Client shall pay additional charges for Services requested by Client which are outside the Digital Marketing Services Order Form and Agreement on a time and materials basis, at GCommerce’s standard hourly rate of $175 per hour. Such charges shall be in addition to all other amounts payable under the Digital Marketing Services Agreement, despite any maximum budget, contract price or final price identified therein. The parties shall mutually agree in good faith to extend or modify any delivery schedule or deadlines as may be required by such Changes.
10.2 Timing. All timelines, written or verbal are tentative. GCommerce will prioritize performance of the Services as may be necessary or as identified in the Digital Marketing Services Agreement and will undertake commercially reasonable efforts to perform the Services and provide the Deliverables within the time(s) identified in the Services. Client agrees to review Deliverables with the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to GCommerce. GCommerce shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that GCommerce’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Services and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or GCommerce’s obligations under the Agreement.
11. CLIENT RESPONSIBILITIES
Client acknowledges that they shall be responsible for performing the following in a reasonable and timely manner:
- coordination of any decision-making with parties other than the GCommerce;
- provision of approved media budget in advance of any month where media shall be placed; and
- final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
GCommerce retains the right to reproduce, publish and display the Deliverables in GCommerce’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative/marketing 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 Services 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. GCommerce may refer to Client as its customer in its sales presentations, marketing materials and other marketing activities. Client further agrees that GCommerce is authorized to disclose on its website the existence of the contractual relationship described in the Digital Marketing Services Agreement and make such other disclosures of the same (but not the financial terms hereof) as it reasonably deems appropriate. Without limiting the foregoing, GCommerce will have the ability to insist upon the placement on Client’s website of a legend bearing the words “Digital Marketing by GCommerce” or words of similar effect and a link to GCommerce’s website.
13. RELATIONSHIP OF THE PARTIES
13.1 Independent Contractor. GCommerce is an independent contractor, not an employee of Client or any company affiliated with Client. GCommerce shall provide the Services under the general direction of Client, but GCommerce shall determine, in GCommerce’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. GCommerce and the Work Product or Deliverables prepared by GCommerce shall not be deemed a work for hire as that term is defined under Copyright Law. 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 the Agreement.
13.2 GCommerce Agents. GCommerce shall be permitted to engage and/or use third party designers, developers or other service providers as independent contractors in connection with the Services (“GCommerce Agents”). Notwithstanding, GCommerce shall remain fully responsible for such GCommerce Agents’ compliance with the various terms and conditions of this Agreement.
13.3 No Solicitation. During the term of this Agreement, and for a period of twelve (12) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Designer, Developer, employee or Agent of GCommerce, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that GCommerce shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. GCommerce, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
13.4 No Exclusivity. The parties expressly acknowledge that Client’s Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by GCommerce, and GCommerce shall be entitled to offer and provide services to others, solicit other clients and otherwise advertise the services offered by GCommerce.
14.1 By Client. Client represents, warrants and covenants to GCommerce that
- Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
- to the best of Client’s knowledge, the Client Content 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,
- Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third-Party Materials, and
- Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
14.2 By GCommerce
- GCommerce hereby represents, warrants and covenants to Client that GCommerce will provide the Services identified in the Digital Marketing Services Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
- GCommerce 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 GCommerce and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Services by GCommerce, GCommerce shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for GCommerce to grant the intellectual property rights provided in this Agreement, and (iii) to the best of GCommerce’s knowledge, the Final Art provided by GCommerce and GCommerce’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-party. 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 Digital Marketing Services Agreement or contrary to the terms and conditions noted herein, all representations and warranties of GCommerce shall be void.
- INTELLECTUAL PROPERTY PROVISIONS
15.1 Client Content. Client Content, including all 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 rights in connection therewith. Client hereby grants to GCommerce a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with GCommerce’s performance of the Services and limited promotional uses of the Deliverables as authorized in the Agreement.
15.2 Third-Party Materials. All Third-Party Materials are the exclusive property of their respective owners. GCommerce shall inform Client of all Third-Party Materials that may be required to perform the Services or otherwise integrated into the Services. Under such circumstances GCommerce shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third-Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third-Party Materials, Client hereby indemnifies, saves and holds harmless GCommerce 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.
16.1 Force Majeure. Except for the payment of money, neither party shall be liable for any delays or nonperformance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate by the other party (including, without limitation, entities or individuals under its control, or any of their respective officers, directors, employees, other personnel and agents), acts or omissions or the failure to cooperate by any third party, fire or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order, or requirement of any governmental agency or authority.
16.2 Notices. All notices to be given hereunder shall be transmitted in writing by electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of email, upon confirmation of receipt.
16.3 Waiver or Modification. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Any waiver, modification or amendment of any provision of this Agreement shall be effective only if in writing in a document that specifically refers to this Agreement and such document is signed by both of the parties hereto.
16.4 Assignment; Successors and Assigns. Client may assign or transfer (by operation of law or otherwise) any of its rights or obligations under the Agreement without the prior written consent of GCommerce. GCommerce may assign or transfer its rights and obligations under this Agreement without the consent of Client, including, without limitation, to any of its affiliates or to any successor to its business or assets to which the Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
16.5 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 Utah 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, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Utah. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that GCommerce will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that GCommerce 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.
16.6 Severability. Whenever possible, each provision of Client’s Digital Marketing Services Agreement and associated Terms & Conditions shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Digital Marketing Services Agreement or Agreement Terms & Conditions is held invalid or unenforceable, the remainder of the Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
16.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
16.8 Integration. Client’s Digital Marketing Services Agreement and the associated Agreement Terms & Conditions 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 the Digital Marketing Services Agreement and associated Agreement Terms & Conditions. In the event of a conflict between the Digital Marketing Services Agreement and Agreement Terms & Conditions, and any other documents, the terms and conditions of the Digital Marketing Services Agreement shall control. The Parties Agreement comprises the Terms and Conditions herein and the Digital Marketing Services Agreement, and all attached Schedules, Exhibits, Addendums and associated documents, as duly executed in writing by the authorized representatives of the Parties.
Client hereby accepts the Terms and Conditions of the Agreement through the written execution of GCommerce’s Digital Marketing Services Agreement and become effective as of such date GCommerce’s Digital Marketing Services Agreement has been executed by Client’s authorized representative.