Minduct Marketing Services Agreement | MinductClient 09/01/21 V1
This Agreement (the “Agreement”) is made and entered into by and between Minduct (“Minduct”) and MinductClient, its employees and agents (collectively “Client”) and applies to providing of marketing and business services (hereinafter collectively referred to as “Services”) requested by Client.
RECITALS
A. WHEREAS, Minduct offers certain marketing and business consulting, strategy, direction, production, creative, design, promotion, public relations, research, operations, and technology services;
B. WHEREAS, Client desires that Minduct provide ongoing marketing and business services to fulfill the Client’s business or organizational objectives;
C. WHEREAS, Client desires to engage Minduct, and Minduct desires to be engaged by Client, to provide these marketing and business services and products on the terms and subject to the conditions set forth below;
NOW THEREFORE, in consideration of the mutual promises set forth herein, Minduct and Client (collectively, the “Parties”) hereby agree as follows:
1. Marketing and Business Services
Minduct agrees to provide Client with Marketing Services as set forth or described in Exhibit A (the “Services and Deliverables”) and to provide Client with additional services, if any, set forth or described in Exhibit B hereto (the “Additional Services”), which exhibits may be amended from time to time by mutual written agreement of the Parties. Client and Minduct agree that Minduct is responsible for providing the Services specifically set forth in Exhibit A and Exhibit B hereto.
2. Responsibilities
In the context of providing these Services, Minduct and Client agree to work collaboratively to achieve the business and marketing objectives for the organization.
Minduct shall
- Provide the services and products described in Services and Deliverables in a professional and timely manner
- Incorporate best practices, creative strategies, and resources to improve workflows and processes
- Communicate with Client to confirm direction and convey progress on marketing activities
Client shall
- Work with Minduct to establish clear guidance and direction for activities described in Exhibit A, Services and Deliverables
- Provide access to all necessary Client Content as described in Item 3. Client Content, including creative assets, database files, reports, and other materials for implementation of the Services.
- Provide access to collaborative and productivity tools maintained by Client to help facilitate the implementation of Services.
3. Client Content
“Client Content” shall mean any materials provided by Client for use in development of marketing, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text. Client shall provide access to existing Client Content and collaboration tools used by the organization or as otherwise specified in Exhibit A to aid in the development of marketing or business services.
4. Proprietary Rights
4.1 Proprietary Rights of Client
Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, domain names, designs, trademarks, patents, trade secrets, and any other proprietary rights, and subject to section 4.2 of this Agreement, all other elements resulting from the Services provided by Minduct to Client. Nothing in this Agreement shall be construed to grant Minduct any ownership right in the Client Content. Any content, websites, or creative assets developed by Minduct expressly for Client shall be the property of Client.
4.2 Proprietary Rights of Minduct
Subject to Client’s ownership interest in Client Content, other materials, including, but not limited, to any computer software (in object code and source code form), script, programming code, data, information or HTML (or XML) script developed or provided by Minduct or its suppliers under this Agreement (with the exception of original elements of created hereunder specifically for Client, which shall be deemed to be part of Client Content), and any trade secrets, know-how, methodologies and processes related to Minduct’s products or services, shall remain the sole and exclusive property of Minduct or its suppliers, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively “Minduct Materials”). Minduct agrees to grant Client unlimited and perpetual use of Minduct Materials pertaining to this agreement.
5. License
5.1 Grant of License – Client
Client hereby grants to Minduct a non-exclusive, worldwide, royalty free license for the Initial Term and any Renewal Term (as those terms are hereinafter defined) to edit, modify, adapt, exhibit, publish, transmit, perform, display, and otherwise use Client Content solely as necessary to render the Services to Client under this Agreement.
5.2 Grant of License – Minduct
Minduct hereby grants to Client a limited, non-exclusive, nontransferable license to make use of Minduct Materials that are incorporated into the providing of Services and that are required to help achieve organizational objectives for Client. Client cannot use Minduct Materials for any other purpose, including selling, copying or transferring any portions to third parties, or providing services for others. Minduct hereby reserves for itself all rights in and to the Minduct Materials not expressly granted to Client in the immediately foregoing sentence.
6. Warranties
6.1 Minduct Warranties
Minduct warrants:
(a) that Minduct has the right and authority to enter into and perform its obligations under this Agreement;
(b) that Minduct shall perform the Services in a professional and timely manner
6.2 Client Warranties
Client warrants:
(a) that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Minduct are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Minduct and its subcontractors from any claim or suit arising from the use of such elements furnished by Client;
(b) that the Client Content does not infringe or violate any right of any third party
7. Limitation of Liability
In no event shall Minduct be liable to client for any indirect, special, exemplary, or consequential damages, whether or not foreseeable or alleged to be based on breach of warranty, contract, negligence or strict liability, arising under this Agreement. This limitation of liability removes any implied warranty of merchantability or fitness for a particular purpose, implied warranties arising from course of performance, lost revenue, loss of data, or any performance under this agreement, notwithstanding any limited remedy provided in this Agreement for failure to provide Services.
Minduct makes no warranty of any kind, whether express or implied, with regard to any third-party products, third party content or any software, equipment, or hardware obtained from third parties.
8. Indemnification
8.1 Indemnification by Client
Client agrees to indemnify, defend, and hold harmless Minduct, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that:
(i) would constitute a breach of any of Client’s warranties, hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the Site provided by Client infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses.
8.2 Indemnification by Minduct
Minduct agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that:
(i) would constitute a breach of any of Minduct’s warranties hereunder; or (ii) arises out of the negligence or willful misconduct of Minduct; or (iii) Client’s use of, or Minduct’s use of, Minduct Materials or any other materials used by Minduct in connection with the Services, infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses
9. Confidentiality
The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process.
The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Minduct and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
10. Miscellaneous
10.1 Entire Agreement
This Agreement and attached Exhibits constitute the entire agreement between Client and Minduct with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement. No amendment, change, waiver, or discharge hereof shall be valid or enforceable unless in writing and signed by the party against which such amendment, change, waiver, or discharge is sought to be enforced.
10.2 Relationship of Parties
Minduct, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a legal partnership. Client does not undertake by this Agreement, or otherwise, to perform any obligation of Minduct. Except as specifically provided for in this contract, Minduct is not to be construed as the agent or to be acting as the agent of Client.
10.3 Schedule Commitments
Minduct agrees to be available as scheduled to respond to regular communications. Minduct agrees to be available as scheduled for weekly/monthly meetings and events pertaining directly to providing Services and fulfilling the marketing or designated business needs of the Client. Minduct also agrees to be available as scheduled for meetings and events that may not directly relate to Services but that provide context and collaboration on an organizational level.
10.4 Legal Jurisdiction
This Agreement shall be governed in accordance with the laws of the State of Utah.
10.5 Tax Jurisdiction and Logistics
Work to be done by Minduct will be completed in Salt Lake City, Utah. Applicable federal and Utah state, county and city taxes for Services will be borne by Minduct as part of this agreement.
Since Client is a nonprofit organization and therefore receives certain tax advantages, Minduct will provide the Client with written quotes and budgets for applicable third-party products and services so that those fees may be paid directly by Client.
10.6 Disputes
Client and Minduct agree to make a good-faith effort to resolve any disagreement arising in connection with this Agreement. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Salt Lake City, Utah, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association.
The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten years of experience in the practice of law and at least five years of experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Utah sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of Utah or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. This Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
10.7 Force Majeure
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement due to any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control that such Party is unable to overcome through the exercise of commercially reasonable diligence. These include acts of God, pandemic, war, strike, riot, labor dispute, work stoppage, fire, judicial or governmental action, or any other cause, whether similar or dissimilar.
If any force majeure event occurs, the affected Party will give prompt notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
10.8 Waiver
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement.
10.9 Severability
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause, or provision shall be deemed to be severed from the Agreement.
10.10 Assignability
Client may not assign this Agreement or the rights and obligations to any third party without the prior express written approval of Minduct. Minduct reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
10.11 Survival
All provisions of this Agreement relating to warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement unless otherwise indicated.
10.12 No Inference Against Author
No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
11. Term and Termination
This Agreement shall be effective when signed by the Parties and thereafter shall remain in effect for 6 months unless earlier terminated as otherwise provided in this Agreement (the “Initial Term”) or by mutual agreement of the Parties. This Agreement may be terminated by either party upon 30 day written notice to the other, if the other party breaches any material obligation of this agreement and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. This Agreement may be terminated by Minduct (i) immediately if Client fails to pay any fees hereunder; or (ii) if Client fails to cooperate with Minduct or hinders Minduct’s ability to perform the Services hereunder.
If desired, this Agreement may be renewed beyond the Initial Term for additional 6-month terms (each, a “Renewal Term”). Either party may terminate this Agreement if the other party materially breaches any of its representations, warranties or obligations under this Agreement, and such breach is not cured within thirty (30) days of receipt of written notice specifying the breach.
Client agrees to pay upon termination of the Agreement any other amounts due to Minduct for work provided as part of the Agreement.
Client acknowledges that they have read and understand this Agreement and agrees to be bound by its terms and conditions. The Parties have caused this agreement to be executed by their respective duly authorized officers on the date written below.