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HomeMy WebLinkAboutItem 06.k  ☒☐ 1 Terms and Conditions- Marketing- Lakeville Area Arts Center (Customer) EXHIBIT A THIS (“Agreement”) is between Security Products Company LLC d/b/a SPC Marketing (“SPC”), and the (“Customer”) and may jointly be referred to as “the Parties.” Customer desires to engage SPC to perform marketing and digital marketing related services and sets out SPC’s general terms and conditions applying those services. 1. TERMS OF AGREEMENT a. The “Deliverables” means any software, documentation or other materials provided to the Customer by SPC. “The Services” means the services ordered by the Customer. b. The term of this Agreement shall be the period plus any subsequent renewal periods with respect to the Services described in the Scope of Work. After the expiration of the period, this Agreement shall continue in effect until either Party provides written notice to the other. During the term of this Agreement, SPC will provide the Services to the Customer as outlined in the Scope of Work attached. c. At any time, either SPC or the Customer may propose a change to the Services. If applicable, SPC will charge the Customer at SPC’s standard rates implementing any such changes agreed to in writing by the Customer. d. SPC may modify its hourly rates with reasonable written notice. 2. SERVICES a. Strategic marketing services i. Ongoing marketing strategy includes short and long term goal analysis ii. Review of present paid, owned, and earned initiatives iii. Testing, evaluation and recommendations of marketing campaigns iv. Taking paid, owned, and earned to specific goals and defining tactics related to paid, owned and earned v. Day to day account management and vendor management vi. Reporting (frequency determined by customer) vii. KPI (key performance indicators) reporting will either be weekly or bi weekly viii. Overall strategy direction will be monthly b. Website Development i. Graphic (look and feel of website with images) ii. Site structure (information architecture which is the backbone of the website and includes patching, backup and site map) iii. CSS implementation (define color, size, position of text, HTML tags and content positioning through a Content Management System (CMS)) iv. UI/UX implementation (UI =user interface and UX =user experience) (this represents the user’s experience of the person using the website) v. Forms (collecting information about the person who lands on the website that is willing to complete information about themselves) vi. CMS (content management system either templated or customized depending on customer needs) vii. Extensions (additional tools that enhance the user experience (mortgage calculators, social feeds, shopping carts or anything that may enhance the user experience) c. Content i. Onsite (content on website, including blogs and email). Number of edits varies based on project size and scope. ii. Offsite (non-digital content including newsletters, direct mail, brochures and other brand materials). Number of edits varies based on project size and scope. d. Social Media i. Growing and engaging a social media audience (bringing your company to where your customers are living in social media in places like Facebook, Twitter, Pinterest, Instagram, Google+ YouTube and LinkedIn ii. Content related to any social media place iii. Manage the media buy on any social media places e. Creative i. Services designed to strengthen our brand through visual imagery 1. Onsite (what is on website about the company brand) 2. Offsite (anything that is published about the company brand that is not on the website such as articles, newsletters, emails, mailers, brochures and other marketing materials not including any social media imagery) f. Email Marketing i. Creation and execution of email campaigns ii. Research and assessment of mailing lists iii. Email template design iv. Manage the results g. Video i. Any imagery that is moving and can be uploaded to a video site ii. Level 1 – defined as live action video edited by a professional, captured by a videographer and has voice over with professional talent and voice. Number of edits varies based on project size and scope. iii. Level 2 – defines as live action video edited by a professional, not captured by a videographer and has voice over with non- professional talent. Number of edits varies based on project size and scope. iv. Level 3—defines as a slide show with imagery, no voice over. Number of edits varies based on project size and scope. h. CRM i. Customer Relationship Management (CRM) software that manages the customer flow and captures data related to leads, sales and ongoing customers ii. Coordinate their existing CRM into the digital marketing lead generation and sales efforts i. Digital Media Buying i. Managing digital media buying budgets ii. Analyze and optimize customer’s media spend for cost effective targeted results iii. KPI reporting weekly if combined with Strategic Marketing Services 2 j. Search i. Ability to get ranked on search engines first page ii. Search engine marketing (pay per click “PPC”) iii. Search engine optimization (effort it takes to get the Company to be ranked organically) iv. Local search engine optimization (ability to rank high or at the top of the directory on a search engine k. Hosting—See attached Exhibit B for terms and conditions regarding hosting services 3. FEES AND PAYMENTS a. The fees for the Services are set forth in Scope of Work and payments will be made in accordance with the terms outlined on SPC’s invoice. b. If applicable, and subject to Customer’s prior approval, Customer shall pay or reimburse SPC for all reasonable ordinary and necessary out-of- pocket expenses actually incurred by SPC in connection with the general performance of SPC’s duties. c. The fees and all other amounts payable to SPC are exclusive of any sales or related tax, which will be billed to the Customer at the rate and in the manner from time to time prescribed by law and included on SPC’s invoice. d. If any amount payable to SPC by the Customer is not paid by the due date, SPC may do any one or more of the following: (i) suspend any or all of the Services; (ii) charge interest on the overdue amount on a daily basis from the due date to the date of actual payment (both dates inclusive) at the lower of the rate of 1.5% per month or the maximum rate permitted under applicable law; and (iii) terminate this Agreement with at least ten (10) days’ notice to Customer. Customer shall be liable for all costs and expenses incurred by SPC in collecting amounts due under any provision of this Agreement, e. Upon termination or expiration of this Agreement, the Customer will pay SPC all unpaid fees and other fees accrued and owing whether or not invoices had been issued at the termination date for all work done and expenses required to be reimbursed pursuant to the Scope of Work with any change orders. 4. THE CUSTOMER’S OBLIGATIONS a. In addition to the obligations noted in paragraph 4(b), the Customer will perform the obligations of Customer, if any, set forth in the Scope of Work, at Customer’s sole expense. Customer hereby represents and warrants that: (i) Customer has been duly incorporated or organized and is in good standing in its state of formation and any jurisdictions in which Customer is required to be registered to do business; (ii) Customer has full power and authority to execute and deliver this Agreement and perform all its obligations hereunder; (iii) the execution, delivery and performance of this Agreement does not or will not violate or cause a breach default under: (a) the governing corporate or company documents of Customer; (b) any agreement, lease, mortgage, license or other contract to which Customer is a party; (c) any intellectual property rights of any third parties; or (d) any law, rule, regulation, order, decree or consent action by which Customer is bound or to which it is subject. b. The Customer will provide the SPC, free of charge, with all information, materials, documentation, resources and facilities in its possession or control reasonably requested by SPC and access to any Customer staff to allow SPC to perform the Services and the Deliverables. 5. INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY a. “Intellectual Property Rights” means any patent (U.S. or foreign), trademark, service mark, registered design, copyright, design right, right to extract or exploit information from a database, database rights, know-how, methodologies, inventions, discoveries, trade secrets, proprietary business information, confidential information or process, any application for any of the above, and any other intellectual property right recognized in any part of the world. Whether or not presently existing or applied for. b. All graphic design work performed by SPC as part of the Services shall be deemed a “work made for hire” pursuant to Title 17 of the U.S. Code. SPC hereby acknowledges that any and all of said graphic design work is the property of Customer, and accordingly if for any reason any such item is held not to be a “work made for hire,” SPC hereby assigns to Customer SPC’s entire right, title and interest in and to all such items. c. Customer shall have a perpetual, non-exclusive right to use the Deliverables (other than as provided in paragraph 5.a. above), to the extent of SPC’s rights therein, subject to the other terms and conditions of this Agreement, including without limitation the obligations of payment pursuant to Section 3 and the confidentiality obligations set forth in paragraph 5.e. below. Customer acknowledges and agrees that the Intellectual Property Rights of SPC in the Deliverables are proprietary to SPC and are protected by copyright and/or trade secret interests of SPC, and all past, present or future goodwill associated therewith or attributable thereto shall at all times remain with SPC. Customer acknowledges that the Deliverables contain information that has been created, developed and maintained by SPC at substantial expense of time and money such that misappropriation or unauthorized use by others for commercial gain would unfairly and irreparably harm SPC. Customer therefore agrees not, during or after the term of this Agreement, to engage in any conduct, directly or indirectly, which would infringe upon, harm, or contest the Intellectual Property Rights of SPC in the Deliverables, or any goodwill associated therewith or attributable thereto. Customer also agrees not to do or permit to be done any act or thing in derogation of any rights of SPC in connection with the Intellectual Property Rights of SPC. Customer agrees that it shall not represent that it has acquired any ownership or equitable rights in the Deliverables by virtue of the rights granted hereunder. d. Customer acknowledges that SPC may license or sell the materials to which SPC has granted rights to Customer under paragraph 5.b above to any other party, provided that such Deliverables do not contain Customer’s proprietary and confidential information, and may create updates, enhancements or derivative works of such materials. Nothing herein shall entitle Customer to any updates, enhancements, feature additions or derivative works developed for any other customer of SPC, unless such modifications are specifically included in the Services hereunder. e. Notwithstanding the foregoing, any Intellectual Property Rights in all open source software and tools covered under the General Public License (GPL/GNU) shall be as set forth under the terms and conditions of such General Public License. f. Each party acknowledges and agrees that it may, during the term of this Agreement, be provided with or otherwise receive or have access to information belonging to or concerning the other party which the other party considers to be proprietary or confidential. A party providing or disclosing such proprietary or confidential information is referred to in this paragraph as the “Disclosing Party,” and the receiving party shall be referred to as the “Receiving Party.” Receiving Party agrees to treat as confidential all such information which is provided to Receiving Party or to which Receiving Party may have access as a result of Disclosing Party’s performance of the Services or Disclosing Party’s tendering confidential information so Receiving Party may complete performance of the Services . As used herein, “confidential information” means Disclosing Party’s Intellectual Property Rights in the Deliverables and the distinctive methods or procedures which Disclosing Party uses in the design, development, licensing, support or maintenance of the Deliverables or the performance of the Services, as well as any information, in any form, whether written or oral, provided or made available directly or indirectly by Disclosing Party to Receiving Party designated as confidential by Disclosing Party or which Receiving Party reasonably should understand to be confidential under the circumstances. Receiving Party shall not use the confidential information for any purpose inconsistent with the terms or conditions of this Agreement. Receiving Party agrees that if it shall violate any covenant or agreement under this Section, Disclosing Party will incur irreparable harm which may not be compensable entirely in monetary damages. The Parties agree that injunctive relief to enforce compliance with this Agreement is an appropriate remedy for breach or a threatened breach of the provisions of this Section, notwithstanding the fact that damages may also be recoverable for breach,. Such remedies shall be in addition to and not in limitation of any injunctive relief or any other remedies or rights to which Disclosing Party is or may be entitled to at law, in equity or under this Agreement. The provisions set forth in this paragraph shall survive the termination of this Agreement. 3 g. Neither Customer nor any of its employees, agents or consultants shall attempt to reverse engineer any technology provided to Customer by SPC or any third party in connection with the performance of the Services, or to decompile or disassemble, in whole or in part, the object code used in the development of the Deliverables except as may be permitted under the General Public License, if applicable. 6. TERMINATION a. Customer may immediately terminate the Agreement if there is a material breach by SPC which breach remains uncured for a period of thirty (30) days after written notice to the breaching party. Customer may also terminate the Agreement for any reason by giving SPC thirty (30) days advance written notice. b. SPC may terminate this Agreement upon notice to Customer if Customer fails to pay any sum due to SPC under the terms of this Agreement when due. c. Either party may terminate this Agreement immediately upon notice to the other party if a trustee, receiver or administrative receiver is appointed with respect to the other party or any part of its assets, or in the event of the liquidation, insolvency or bankruptcy of the other party, whether voluntary or involuntary, or if the other party becomes subject to an administration order or enters into any voluntary arrangement with its creditors, or ceases or threatens to cease to carry on its business. d. Upon termination or expiration of this Agreement for any reason, with the exception of material breach of SPCs’ obligations under this Agreement, Customer will pay SPC all unpaid fees and other fees accrued and owing through the date of termination as reasonable in accordance with the provisions of Paragraph 3. If Customer terminates this Agreement other than for SPC’s breach as provided in paragraph a. above, Customer shall, in addition, be liable for the outstanding balance of the fees in the Scope of Work, whether or not SPC has submitted its invoice for such amount by the termination date. e. Paragraphs 3, 5, 7, 8, 9, 10, and 11 of this Agreement will survive the termination of this Agreement. 7. CUSTOMER’S WARRANTIES a. The Customer warrants to SPC that the Customer has not been induced to enter into this Agreement by any warranties or representations, except those specifically contained in this Agreement as warranties. The Customer waives any claim for breach of any representation and for any misrepresentation, except in respect of any fraudulent misrepresentation. b. The Customer warrants to SPC that the Customer has the right to disclose the Customer’s Data to SPC and that SPC is entitled to retain, disclose and amend that information for the purposes of fulfilling its obligations under this Agreement. The Customer warrants to SPC that the Customer’s Data is complete, up to date, true and correct and that all additions and changes to the Customer’s Data will be complete, up to date, true and correct, and that the Customer will not do anything or omit to do anything which might put SPC in breach of any Data Protection legislation or any Data Protection Principles. 8. SPC’S WARRANTY AND LIABILITY a. SPC will perform the Services with reasonable skill and care. If the Services are not provided in accordance with this warranty, Customer may, within thirty (30) days following such non-compliance, deliver to SPC written notice specifying the defect or omission constituting such non-compliance, and SPC will re-perform the Services at no charge to Customer or Customer may choose to terminate the Agreement in accordance with Section 6 of this Agreement. b. SPC’s work-for-hire pursuant to Paragraph 5 (b) of this Agreement shall not infringe upon the intellectual property rights of any third party. c. SPC represents and warrants to Customer that: (i) this Agreement has been duly and validly executed and delivered by SPC and constitutes the legal, valid and binding obligation of SPC, enforceable against SPC in accordance with its terms; and (ii) the person executing this Agreement on behalf of SPC has full power and authority to execute, deliver and perform this Agreement. d. DISCLAIMER OF WARRANTY. NOTWITHSTANDING ANY OTHER ORAL OR WRITTEN COMMUNICATIONS BETWEEN SPC AND CUSTOMER ABOUT OR IN CONNECTION WITH THE SERVICES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN THIS AGREEMENT, NEITHER SPC, ITS EMPLOYEES, AFFILIATES, AGENTS, PROVIDERS, SUB-CONTRACTORS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS NOR THE LIKE MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, FOR THE SERVICES OR ANY EQUIPMENT SPCPROVIDES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT TO THE CONTRARY, AND SUBJECT TO ANY SERVICE SCHEDULE SPECIFICALLY REFERENCED HEREIN, THE SERVICES AND EQUIPMENT PROVIDED UNDER OR ASSOCIATED WITH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. NEITHER SPC, ITS EMPLOYEES, AFFILIATES, AGENTS, PROVIDERS, SUB-CONTRACTORS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES OR DELIVERABLES HEREUNDER WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS, DEFECTS OR DEFICIENCIES CAN BE CORRECTED OR REMEDIED; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. SPCIS NOT LIABLE FOR THE CONTENT OR LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S CLIENTELE VIA THE SERVICE(S) PROVIDED BY SPC. e. Because of the uncertainty of future events and circumstances SPC does not guarantee that its forecasts, projections, advice or recommendations, or the contents of any report, presentation or other document will be achievable, and the Customer acknowledges that SPC gives the same to address specific circumstances at the time. All information supplied by SPC will be supplied in good faith but the accuracy and completeness of any information obtained from, or based on information obtained from, the Customer or any third party is not guaranteed by SPC. f. SPC will not be liable to the Customer for any loss arising out of any failure by the Customer to keep full and up-to-date security copies of the computer programs and data which it uses; the Customer’s failure to comply with any technical prerequisites specified from time to time by the licensor of any software or the manufacturer of any equipment; any error or incompleteness in the Customer’s Data; any fault in any media; any delay or failure on the part of the Customer in providing any of the Customer’s Data to SPC; any delay or failure on the part of the Customer to notify SPC of any error in any output or of any actual or suspected failure of, or error or defect in, any equipment, software, network or telecommunications system once known to Customer; any failure of the Customer to comply with the terms and conditions of this Agreement; or any delay or failure on the part of any hardware or software SPC or maintainer to correct any fault or defect or to provide any other service. g. SPC will not be liable in contract or in tort (including negligence) or in any other way for any loss or damage sustained or incurred by the Customer or any third party (including, without limitation, any loss of use of any software or equipment, or loss of or spoiling of any data, or the results of processing any data) resulting from any defect, deficiency or error in any equipment or in any software or in any associated documentation, or for any failure or interruption of any telecommunications facilities or network systems. h. With respect to any tangible property of the Customer, SPC shall not be liable for any loss or damage unless directly caused by the negligence or misconduct of SPC or its employees acting in the course of their employment. In no event shall such liability exceed the lesser of the value of the property lost or the cost of repairing the damage to the property. i. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, SPC WILL NOT BE LIABLE TO THE CUSTOMER FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF OPPORTUNITY, LOSS OF CONTRACTS, LOSS OR SPOILING OF DATA OR ANY INDIRECT OR CONSEQUENTIAL LOSS, WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT OR IN ANY OTHER WAY, AND WHETHER OR NOT OF A KIND FORESEEABLE BY SPC, EVEN IF SPC KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE 4 OR DAMAGES. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT SPC’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO AMOUNTS COVERED AND PAID UNDER SPC’S APPLICABLE COMMERCIAL GENERAL LIABILITY AND/OR ERRORS AND OMISSIONS INSURANCE POLICIES. 9. CUSTOMER AND SPC INDEMNITY a. Customer and SPC mutually agree to indemnify, defend and hold one another and their affiliates, respective directors, officers, employees, agents and representatives harmless from and against any and all claims, suits, actions, proceedings, damages, costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) resulting from or arising in connection with (a) the breach of any representation, warranty or covenant, or material breach of any other obligation set f orth herein; (b) Either Party’s use of information in connection with the Services; (c) allegations arising from a claim by Customer’s clients; (d) failure of either Party to perform its obligations pursuant to Sections 4 and 10 of this Agreement; Both Parties further acknowledge and agree that the obligations contained in this Agreement are essential to the provision of Services, that the failure to perform such obligations constitutes a material breach of this Agreement, and that the obligations are ongoing in nature and shall remain in force throughout the term of this Agreement . b. A party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any claim, with full particulars, and shall cooperate, at the indemnifying party’s expense, in the investigation and defense of the claim. After receiving notice, the indemnifying party shall take control of the defense and investigation of the claim and shall employ counsel of its choice to handle and defend the same, at the indemnifying party's sole cost and expense. The indemnified party has the right to participate in such matter through counsel of its own choosing, but in such case, at the indemnified parties’ sole expense. No indemnifying party shall have any obligation to pay or reimburse any amounts paid in connection with any settlement or compromise reached without the prior written consent of the indemnifying party. In the event that either party shall be obligated to indemnify the other party pursuant to this Agreement, the indemnifying party shall, upon payment of such indemnity in full, be subrogated to all rights, claims and defenses of the indemnified party. 10. NON-SOLICITATION COVENANT Customer agrees that it shall not, during the term of this Agreement and for a period of one (1) year following termination, directly or indirectly, by any means or device whatsoever, on behalf of Customer or on behalf of, or in conjunction with, any person, partnership, corporation or other entity induce, entice, or hire, or attempt to hire or employ, or refer employment opportunities to any employee or independent contractor of SPC, whether the proposed opportunity involves an employment, independent contractor or other relationship. 11. OTHER --This Agreement shall inure to the benefit of, be binding upon and enforceable against, the parties hereto and their permitted, respective successors, heirs, beneficiaries, and permitted assigns. The headings contained in this Agreement are for convenience of reference only, and shall not effect in any way the meaning or interpretation of this Agreement. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a continuing waiver of any subsequent breach by either party. No waiver by either party of any provisions or conditions to be performed shall be deemed a waiver of similar or dissimilar provisions or conditions at the same time or any prior or subsequent time. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. If, for any reason, any provision of this Agreement is held invalid, such invalidity shall not affect any other provisions of this Agreement not held so invalid, and each such other provision shall to the full extent consistent with law continue in full force and effect. If any provision of this Agreement shall be held invalid in part, such invalidity shall in no way affect the rest of such provision not held so invalid, and the rest of such provision, together with all other provisions of this Agreement, shall to the full extent consistent with law continue in full force and effect. This Agreement may be executed in one or more original or facsimile counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by all the parties. All representations, warranties, covenants and agreements of the parties contained in this Agreement, or in any instrument, certificate, opinion, exhibit or other writing provided for in it, shall survive the execution of this Agreement and the consummation of the transaction contemplated herein. The Customer and SPC may assign its rights and obligations of this Agreement. The parties agree that the forum for any court action relating to the terms of this Agreement shall be the District Court of the State of Minnesota, County of Anoka. Further, the parties accept generally and unconditionally the jurisdiction of said court and any related appellate court and irrevocably waive any objection as to the venue of any action or inconvenient forum.