POWERPUBLISH STANDARD TERMS OF ENGAGEMENT
EFFECTIVENESS OF AGREEMENT
Upon execution of the letter agreement by Client, Client shall be bound by the letter agreement and all appendices attached thereto, including these Standard Terms of Engagement (the letter agreement and all appendices attached thereto are collectively referred to as the “Agreement”).
WARRANTIES; DISCLAIMERS
PowerPublish warrants that the Services furnished by PowerPublish will be formed in a professional and workmanlike manner. PowerPublish’s sole obligation shall be to correct any non-conformance with this warranty, but only if Client gives PowerPublish written notice within 30 days after the Services are performed. THE ABOVE IS POWERPUBLISH’S ONLY REPRESENTATION AND WARRANTY TO CLIENT, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, HABITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, EACH OF WHICH POWERPUBLISH HEREBY EXPRESSLY DISCLAIMS.
WARRANTY BY THE CLIENT
The Clients and/or its representatives hereby represent and warrant to PowerPublish that (a) it has the full right, power, and authority to enter into this Agreement, perform its obligations hereunder, and to grant any of the rights herein granted; (b) none of the information supplied by the Client infringes upon or violates any copyright, personal, proprietary, or other rights of any other party or is otherwise unlawful; (c) Client is either the owner of, is licensed to, and does hereby authorize PowerPublish to publish all of the materials or information submitted by the Client to PowerPublish. The Client hereby agrees to and will indemnify and save PowerPublish harmless from and against any loss of expenses (including reasonable attorneys fees) resulting from claims or suits based upon the contents or subject matter of material or information submitted by the Client to PowerPublish, including, without limitation, claims or suits for libel, violation of rights or privacy or publicity, plagiarism and copyright infringement.
ERRORS AND OMISSIONS IN CAMPAIGN PUBLICATION
All errors must be reported to PowerPublish within three (3) days of publication date. The Client hereby acknowledges and agrees that no credit will be given to Client for errors that do not materially affect the value of any campaign, or the Client’s financial liability in the redemption thereof, regardless of the source or cause of errors. PowerPublish’s liability in connection with any material problems, damages or injuries, of any kind related to the services provided for hereunder, shall in no event exceed the cost of the services provided by it hereunder. Further, PowerPublish has no liability for any damages caused to or suffered by Client in connection with Client’s technology equipment, software, websites, or other technology sources. IN NO EVENT WILL POWERPUBLISH BE LIABLE TO THE CLIENT FOR CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR SIMILAR DAMAGES.
LIMITATION OF LIABILITY
(a) POWERPUBLISH’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER WILL BE LIMITED TO AND SHALL NOT EXCEED THE AMOUNT POWERPUBLISH HAS ACTUALLY RECEIVED FROM CLIENT UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
(b) IN NO EVENT SHALL POWERPUBLISH BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST OR ANTICIPATED REVENUE, PROFITS OR LOSS OR USE OF DATA OR INFORMATION OF ANY KIND) ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, EQUITY, TORT (INCLUDING ANY FORM OF NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND WHETHER OR NOT POWERPUBLISH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
OWNERSHIP OF MATERIALS
Client shall own all right, title, and interest in any work product first created and approved for final output in connection with the Services (“Work Product”). Client shall only be eligible to receive flattened image files (example: JPG, PNG, GIF, TIFF), rendered video files (example: M-PEG4 h.264 codec (for internet viewing) or QuickTime codec (for HD CD/DVD) with extension mov, mp4, avi, or wmv) and any further requests to alter these assets will be routed through appropriate PowerPublish contact. The foregoing notwithstanding, Work Product shall not include pre-existing materials, software, or applications that are owned by PowerPublish or licensed to PowerPublish by third parties and that PowerPublish uses in the performance of the Services, derivative works deriving from or based on any of the foregoing, or any ideas, concepts, methods, techniques, processes, procedures or know-how embodied by or incorporated into the deliverables that PowerPublish provides to you (collectively, “Tools”). All right, title, and interest in and to the Tools shall remain PowerPublish’s exclusive property, or the exclusive property of PowerPublish’s licensors. Subject to Client’s payment of and remaining current with respect to all amounts due hereunder, PowerPublish shall grant to Client a royalty-free, non-exclusive, non-transferable license (without the right to sublicense) to use the Tools for Client’s internal purposes as part of the Work Product. The foregoing license shall not apply to third-party products or to the Tools identified by PowerPublish as being subject to separate license agreements.
PAYMENT
(a) PowerPublish Invoices will be issued on the first of every month after initial signup. PowerPublish issues invoices in advance of the month that service is provided. Client shall make payment to PowerPublish within 30 (thirty) calendar days after receipt of PowerPublish’s Invoice unless expressly stated otherwise in the “Agreement.”. Delinquent accounts (unpaid after the period of remittance) are subject to interest at 18% per annum or submission to collections. As used herein, “Reimbursable Expenses” means all expenses incurred by PowerPublish in connection with providing the Services hereunder.
(b) The parties will negotiate in good faith the payment of any disputed amount. Client’s failure to question any invoice within 10 calendar days after the invoice is delivered to Client shall be conclusive evidence that such invoice is correct and that PowerPublish is entitled to full payment for all sums set forth in such invoice.
(c) Client shall be responsible for all expenses incurred by PowerPublish in collection, including reasonable attorneys’ fees.
(d) No deductions shall be made from PowerPublish’s compensation except where PowerPublish is finally determined to be legally liable by a court with jurisdiction over the parties.
PAYMENT TERMS FOR PAID MEDIA SPEND
Client(s) for whom PowerPublish manages paid media spend has two options: (a) Client may use their own paid media accounts (Facebook, Google Adwords, etc.) or (b) may use PowerPublish’s paid media account(s) in order to execute advertising campaigns. If PowerPublish is using its own paid media accounts on behalf of Client, Client agrees to pre-pay all media spend in accordance with the billing schedule set forth in the signed statement of work, and is held to all payment and penalty terms set forth in this Agreement. The preferred payment method for all services, including paid media spend is ACH bank transfer. If using PowerPublish credit card to pre-pay for all paid media spend as set forth in the signed statement of work, Client agrees to pay an additional three percent (3%) credit card processing fee.
CONFIDENTIAL INFORMATION
If PowerPublish or Client supplies proprietary or confidential information to the other party in connection with this Agreement that is identified as, or that the other party should have known is, confidential, then the other party agrees to (a) protect the confidential information in a reasonable manner and (b) use and reproduce confidential information only as required to perform its obligations under this Agreement. This Section will not apply to information that is publicly known; already known to the receiving party; disclosed to a third party without restriction; or disclosed pursuant to legal requirement or order. Subject to the foregoing, PowerPublish may disclose Client’s confidential information to PowerPublish’s subcontractors and affiliates.
NON-SOLICITATION OF EMPLOYEES, CONTRACTORS, AND SUBCONTRACTORS
In consideration of this Agreement and for other good and valuable consideration, during the term of this Agreement and for a period of one (1) year from the date of expiration or termination of this Agreement (at any time for any reason), the Client agrees not to hire any of PowerPublish’s employees, contractors or subcontractors (employed or engaged at any time during the term of this Agreement) or attempt, directly or indirectly, to solicit, entice, persuade or induce any employee, contractor or subcontractor of PowerPublish to terminate his or her employment or engagement with PowerPublish or to become employed or engaged by any other person, firm or corporation, or approach any such employee or subcontractor for any of the foregoing purposes or authorize and assist in the taking of any such action by any third party.
TERM; TERMINATION
This initial term of this Agreement shall be for the period set forth on the first page of the Agreement (the “Term”).
(a) PowerPublish may terminate this Agreement (i) upon 30 (thirty) days’ prior written notice to Client, or (ii) immediately upon written notice to Client if Client fails to make a payment when due. Client shall pay PowerPublish through the end of the Initial Term or then-current Term, as applicable, including all Reimbursable Expenses.
(b) The Client may terminate this Agreement upon 30 (thirty) days’ prior written notice to PowerPublish. Upon termination of this agreement by Client without PowerPublish’s fault or consent, Client shall pay PowerPublish, in addition to all of the fees earned by PowerPublish pursuant to the terms hereof, any and all expenses and third-party costs reasonably incurred by PowerPublish through the effective date of cancellation.
(c) If Client desires to terminate this Agreement due to PowerPublish’s fault, Client shall give PowerPublish written notice detailing the nature of PowerPublish’s fault and possible remedies, whereupon PowerPublish shall have a reasonable period of time (but in no event less than 30 days) to cure such fault. Termination by Client without providing the foregoing notice and cure period shall be considered “termination without PowerPublish’s fault’ as described above.
INDEPENDENT PARTIES
The parties to this Agreement are independent parties and PowerPublish will be considered, for all purposes, an independent contractor of Client. Nothing in this Agreement will be construed to make either party an agent, employee, joint venturer, partner or legal representative of the other party.
SEVERABILITY
If any provision contained in this Agreement shall be adjudicated to be partially or totally invalid or unenforceable for any reason, such provision shall be reformed to the minimum extent necessary to render it valid and enforceable. If a court refuses to so modify any such provision, such provision shall be eliminated from this Agreement but each of the remaining terms, provisions and covenants shall remain in full force and effect.
WAIVERS
The parties may waive any provision in this Agreement only by a writing executed by the party against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this Agreement, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
NOTICES
All notices and other communications hereunder (a) shall be in writing and shall be delivered to the address of the other party set forth in this Agreement; (b) shall be deemed given or delivered (i) if delivered personally, when received, (ii) if sent from within the United States by registered or certified mail, postage prepaid, return receipt requested, on the third business day after mailing, (iii) if sent by messenger or reputable overnight courier service, when received, or (iv) if sent by e-mail when receipt is verified by electronic confirmation. A party may change its address by giving notice pursuant to this Section.
ASSIGNMENT
Neither this Agreement nor any of the rights, interests or obligations of any party hereunder may be assigned by such party, in whole or in part (whether by operation of law or otherwise), without the prior written consent of the other party, and any attempted assignment without such consent shall be null and void; provided, however, that PowerPublish may assign its rights, interests and obligations under this Agreement without the consent of Client to any person or entity who acquires all or substantially all of the assets and business of PowerPublish or to any affiliate of PowerPublish.
SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.
THIRD PARTY BENEFICIARIES
Except where expressly stated otherwise in this Agreement, this Agreement does not and is not intended to confer any rights or remedies upon any party other than the parties to this Agreement.
ENTIRE AGREEMENT AMENDMENTS
This Agreement constitutes the final agreement between the parties. All prior and contemporaneous oral and written communications, negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The parties may amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.
GOVERNING LAW; VENUE
The laws of the State of Missouri (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement. The parties agree that any cause of action that may arise in any way under or due to this Agreement shall be brought and have venue in the County of St. Louis, Missouri.
COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. Signatures to this Agreement that are transmitted electronically (i.e., via e-mail or facsimile) shall be binding.