TERMS AND CONDITIONS – MARKETING SERVICE AGREEMENT – MSA Revision 22Q4-ARR

STATEMENT OF PURPOSE

The purpose of this Agreement is to define the terms and conditions under which Provider will provide design, development, implementation, and creative marketing, advertising, and promotion services to Client with respect to the Internet and the world wide web.

Client and Provider hereby agree as follows:

DEFINITIONS As used in this Agreement:

• “Confidential Information” means the information and materials of the parties that may be confidential or proprietary or may contain valuable trade secrets and similar business information and are identified as such by the owner in a commercially reasonable manner.
• “Services” means creative services and services related to the design, development, and implementation of marketing and sales, including advertisement purchase and placement, e-mail marketing campaigns, SEO optimization, web analytics, and related services, all as more particularly described in each sequentially numbered Statement of Work executed.
• “Statement of Work” means a document executed by the parties in connection with discrete advertising or marketing projects to be undertaken by Provider, which shall contain at a minimum the following information and be substantially in the form attached hereto as Exhibit A: (a) project title, (b) client information, (c) a description of the Services and the deliverables or work products to be produced by Provider (the “Work Product”); (d) description of any specific Work Product that is to be delivered or provided by Provider.

CLIENT OBLIGATIONS

1. Client shall provide Provider with all information required in each Statement of Work within the time frames set forth in the Statements.
2. The Client is solely responsible for providing the Provider with clear and specific instructions respecting what modifications are to be made to any of the Client’s assets or deliverables. Provider shall take reasonable steps to clarify ambiguous requests; however, Provider will not be liable to Client or any third parties for unclear or ambiguous requests submitted by Client or Client’s agent or agents.
3. In connection with the Services, Client hereby authorizes and grants Provider a limited license to use Client’s trade and service names and marks, and will cause Client’s principal, if any, to grant the same limited license to use Client’s principal’s trade name and service.

PAYMENTS

1. General. Client shall pay Provider in accordance with the terms of the Statement of Work (or “Order Form). Additional Services may be added to the scope of services hereunder only upon execution of an amended Statement of Work outlining any requested changes to the original Statement of Work (“Additional Work”), and by both parties specifying the services, pricing, and payment terms for such Additional Work.
2. Invoicing and Payment. Provider will invoice Client for amounts due in connection with the Services as rendered. Each invoice shall set forth a reasonable calculation of the total amount due. All invoices shall be deemed Provider Confidential Information. Client shall pay all undisputed invoices and undisputed portions of invoices upon receipt of the same, and any disputed portions of any invoice must be disputed in a writing delivered to Provider within such ten (10) day period specifically identifying the disputed amount and the reason for such dispute. All overdue amounts under this Agreement shall bear interest at the rate of 18% (eighteen percent) per annum or the maximum rate allowed by law, whichever is lesser.
3. No Refunds. Client understands and agrees that the amounts invoiced are non-reimbursable and Client will specifically not be entitled to any refunds of any amounts paid.
4. Manner of Payment. Client shall pay for all amounts payable under this Agreement through company check, credit card, ACH (electronic debit from the Client’s bank account) or such other form of payment as Provider may, in its sole discretion, permit. All payments made via credit/debit card are subject to a three percent (3%) convenience fee of the total net amount charged. In the case of payment through ACH, no amounts owing are considered paid until the electronic debit has been received by Provider bank.
5. Taxes. Client agrees to pay, and to indemnify and hold Provider and its service bureau providers harmless from, any sales, use, excise, import or export, stamp, value added or similar tax or duty not based on Provider’s or such providers income, property values, and business license taxes, as well as the collection or withholding thereof, including penalties and interest, and all government permit or license fees and all customs or similar fees, levied upon the performance of the Services by Provider and partners hereunder. The parties shall, at their own option and expense, have the right to seek administrative relief, a ruling, judicial review or other appropriate review (in a manner deemed appropriate by the party seeking such determination), as to the applicability of any tax, penalty or interest, or to protest any assessment and control any legal challenge to such assessment, but shall be liable hereunder for any such amount ultimately determined to be due. The parties agree to cooperate and provide reasonable documentation toward the resolution of tax audits conducted by government taxing authorities relating to purchases under this Agreement.
6. Late-Payment Charges: The Client shall pay the Provider for all the work performed and costs incurred. In no event will any payment under this Agreement be contingent on receipt of any monies or other compensation by the Client. Each invoice hereunder is due and payable within 15 consecutive days (Net 15) days after its invoice date. All rights of the Client herein are conditioned on the Provider’s receipt of full payment. If payment is not received within 30 days of the original due date, the Provider may suspend the performance of services, and withhold delivery of materials, including Client access to any Provider-managed software and platforms until payment is received in full of all amounts due. Provider shall not be liable for any damages, losses, or liabilities that may arise out of Provider’s suspension of performance and/or withholding of materials due to Client’s non-payment. Late payments shall accrue interest at the rate of 1.5% per month. Provider shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, its attorneys’ fees and costs as outlined below. 

REPRESENTATIONS AND WARRANTIES

1. Power and Authority. Due Organization. Each party represents and warrants that it is duly organized, validly existing and in good standing in its state of incorporation and has full power and authority to enter into this Agreement and to contract for the Services in accordance with the terms of this Agreement.
2. Client Representation. Client represents and warrants that the information provided for content creation such as provided text, graphics, and photographs provided to Provider for any Work Product are facts or owned or licensed by Client, and that Provider is authorized to use and display such items in the manner contemplated by this Agreement. Client shall be solely responsible for the Site and content on the site/marketing materials and the validity of copyrights, trademarks and ownership claimed by Client. Client agrees to indemnify and hold Provider harmless from and against any claim, loss, damage, expense or liability (including attorney’s fees and costs) that may result in whole or in part, from: i) any infringement or any claim of infringement, of any trademark, copyright, trade secret, or negligence arising from any of the text, graphics, and photographs provided by Client, ii) any claim by a third party regarding any services or products sold or otherwise distributed by Client, its employees or agents, or iii) any claim, suit, penalty, tax or tariff arising from Client’s use of the internet or electronic commerce.
3. Copyright Infringement Complaints. Client may not direct or request the Provider incorporate any content in any manner that infringes upon the rights of any third parties.
4. On-line Conduct Policy. Client acknowledges that it is Provider’s business policy to conduct e-mail and on-line campaigns in a manner so as not to: send unsolicited email to Recipients (unless authorized by federal law) (spam), misuse or misappropriate other party’s trademarks, send obscene messages to Recipients or use email to conduct illegal activities as per current law. Client agrees that it will take no actions inconsistent with this policy and that it will make its principal(s) aware of such policy. Client further agrees that it will cooperate with Provider in its efforts to respect Recipient’s privacy wishes and requests to be unsubscribed from receiving email.
5. Limitations. Client acknowledges that Provider may retain third-party service providers or subcontractors to perform portions of the Services. Where necessary, Provider shall execute, and shall require its service providers to execute, appropriate non-disclosure agreements and to use their commercially reasonable efforts to ensure that the Services are provided in a timely manner. Provider agrees that Client shall not be responsible for the nonperformance by any of Provider’s third-party service providers or subcontractors.

COOPERATION

1. Each party will exert commercially reasonable efforts to make each Project successful. You understand that your delay in providing feedback and/or Content may delay the Schedule for the Project and, if it creates substantial inefficiency for us, we will be entitled to increase any fixed prices accordingly.

PROPRIETARY RIGHTS

1. We develop libraries of code that we use for various projects. We own the proprietary rights in and will continue to own the proprietary rights in, the code we have developed previously and use in any Project and in any code, we develop in connection with producing any Project.
2. We may also use graphics we have previously developed in which we own proprietary rights. We will continue to own the proprietary rights in those graphics.
3. You will own, and we assign to you, limited, revocable copyrights in the graphics we develop in the course of any Project.
4. You will own the proprietary rights in all of the content that you provide to us (“your Content”).
5. You grant us and our successors a license to use the graphics we develop and your Content for promotional and demonstration purposes only.

OWNERSHIP

1. Definitions. The term “Work Product” means all inventions, ideas, concepts, data, drawings, schematics, processes, methods, techniques, designs, prototypes, models, writings, frameworks, algorithms, formulae, architectures, configurations, deliverables, tools, models, utilities, objects, analyses, specifications, reports, designs, other technical elements, and related technical notes and documentation, and other documents or materials created or developed by Provider during performance under the Agreement. The term “Intellectual Property” means patents, patent applications, trademarks, copyrights, copyrightable materials, trade secrets and any other similar intellectual property or proprietary rights related to or embodied in the Work Product and all modifications, improvements and changes thereto and derivatives thereto.
2. Pre-existing Intellectual Property. Each party owns all rights, title,s and interests in and to its respective intellectual property and proprietary materials created or developed prior to the date of this Agreement.
3. Ownership of Work Product. Provider acknowledges and agrees that all Work Product and Intellectual Property, created as part of this Agreement, shall be the sole and exclusive property of Customer unless Client fails to make full payment or if Client fails to timely address a default within five days of having received notice thereof from Client, Chatter Buzz reserves the right to immediately terminate/cease its Work Products, website, hosting, optimization, web upgrades, and all content created by Chatter Buzz, and its agents, may become the sole property of Chatter Buzz. In support of the foregoing, Provider hereby agrees that all Work Product and Intellectual Property shall be considered works for hire in favor of Customer within the meaning of applicable copyright laws.

PROVIDER LIMITED WARRANTY

1. Limited Warranty. Provider warrants that it shall use commercially reasonable efforts to facilitate the Services being performed for Client by third-party service providers or subcontractors. PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER, ITS AGENTS OR EMPLOYEES, SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF PROVIDER’S LIMITED WARRANTY.
2. Limited Damages. NOTWITHSTANDING ANYTHING CONTAINED ELSEWHERE WITHIN OR WITHOUT THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL PROVIDER BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY NATURE OR TYPE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS FOR LOST PROFITS, REVENUES OR INFORMATION), AND PROVIDER’S LIABILITY HEREUNDER (AS WELL AS THE LIABILITY OF ANY OFFICER, DIRECTOR, PARTNER, EMPLOYEE OR ANY OF PROVIDER’S SERVICE PROVIDERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS AND EMPLOYEE’S, AS THE CASE MAY BE) SHALL BE LIMITED IN ALL EVENTS TO AMOUNTS PAID TO PROVIDER BY CLIENT UNDER THIS AGREEMENT.

CLIENT INDEMNIFICATION

1. Client Indemnification of Provider. Client shall indemnify Provider and its service providers and hold Provider and its service providers harmless from and against any and all liabilities, lawsuits, damages, claims, payments, judgements, costs and expenses (including attorney’s fees) suffered by or incurred by Provider as a result of any claim or cause of action arising out of or relating to: (a) Clients performance of or failure to perform its obligations under this Agreement; (b) any breach of the covenants, representations and warranties given to Provider by Client under this Agreement; or (c) any claim or cause of action against Provider alleging that the content of any e-mail, on-line transmission or other distribution of any materials provided by Client sent pursuant to the terms of this Agreement infringes or violates the rights of any third party.

CONFIDENTIALITY

1. Non-Disclosure. The parties agree and shall cause their respective service providers and subcontractors to agree that they will not make use of, disseminate, or in any way disclose any Confidential Information to any person, firm or business, except as authorized by this Agreement and to the extent necessary for performance of this Agreement. The parties represent that they will exercise reasonable care to protect their own Confidential Information.

TERM AND TERMINATION

1. Term. The term of this Agreement will commence on the Effective Date and will continue through the Termination/Completion dated identified in the Statement of Work OR Order Form, unless terminated in accordance with the provisions hereof. After the Initial Term, this Agreement may continue on a month-to-month basis, until the time that either party has terminated the Agreement pursuant to this Section.
2. Termination Not for Cause. Provider party may terminate this Agreement at any time with 15 (fifteen) days’ written notice to the Client; or:
3. Termination for Cause. Any party may terminate this Agreement with 30 (thirty) days’ written notice for material breach of the Agreement by the other party; or:
   1. If any party ceases to do business, or otherwise terminates its business operations; or
   2. If any party fails to promptly secure or renew any license, registration, permit, authorization or approval for the conduct of its business in the manner contemplated by this Agreement or if any such license, registration, permit, authorization or approval is revoked or suspended and not reinstated within 14 (fourteen) days; or
   3. Effective immediately and without notice if any party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against any other party (and not dismissed within 30 (thirty) days).
4. Rights upon Expiration or Termination. Upon termination of this Agreement, each party will deliver to all other parties Confidential Information of the other parties, and an authorized officer of each party will certify in writing that it has done so. Client shall pay, in accordance with the terms hereof, the final invoices submitted by Provider. Provider reserves the rights to retain exclusive rights to all Work Product. Client account access, logins, work product, and assets cannot be conveyed until all outstanding account balances have been settled to the satisfaction of the Provider.
5. Marketing Campaign Pauses: If Client requests to pause the campaign and the campaign is paused for more than 45 days, Client will have to pay an additional Campaign Set-Up Fee to restart the campaign. Provider may charge the Client Card or shall be permitted to cause payment to be made through ACH for the Cancellation Fee or Provider may invoice Client for such additional Set-Up Fee, which invoice must be paid within seven (7) business days after the invoice date.

ADDITIONAL WORK

1. If the client requests any work that falls outside the original scope of work agreed upon in the initial agreement, such requests shall be considered “Additional Work.” Additional Work includes but is not limited to modifications, additions, enhancements, or changes to the original project.
2. Hourly Billing.  For any Additional Work requested by the client, the provider will bill at a rate of $150 per hour. The client will be responsible for the total number of hours worked on the Additional Work. The Provider shall provide the client with a detailed breakdown of the hours worked. 
3. Estimate Approval. As the provider presents the client with an estimate of the hours required to complete the work and an estimated cost. The client must approve the estimate in writing (via email or other written means) before the provider begins the Additional Work.
4. Invoices for Additional Work will be provided to the client upon completion of the work. Payment terms for Additional Work are Net 15. Payment is due within the agreed-upon timeframe from the invoice date.
5. Right to Decline Additional Work: The provider reserves the right to decline or postpone any Additional Work request if it is deemed outside the provider’s expertise, capacity, or ability to complete within the client’s desired timeframe.

GENERAL

1. No Agency. Each party will in all matters relating to this Agreement act as an independent contractor. No party will have authority and will not represent that it has any authority to assume or create any obligation, express or implied, on behalf of any other, or to represent any other party as an agent, employee or in any other capacity. Neither execution nor performance of this Agreement will be construed to have established any agency, joint venture or partnership.
2. Force Majeure. Any delay in or failure by Client or Provider in performance of this Agreement shall be excused if and to the extent that such delay or failure is caused by occurrences beyond the reasonable control of the affected party, including, but not limited to, decrees or restraints of governments, acts of God, strikes or other labor disturbances, endemics, pandemics, war or sabotage, provided that, if a Force Majeure Event occurs for more than 72 (seventy-two) hours, the affected party shall promptly provide written or faxed notice thereof to the other parties, which notice shall include a description of the Force Majeure Event and the affected party’s best estimate of the length of time such Force Majeure Event will delay or prevent performance of the Agreement. At no point in time shall force majeure serve as an excusal for payment for services and costs incurred by Provider. 
3. Notices. All notices, demands, consents, approvals or other communications permitted or required hereunder shall not be effective unless the same shall be in writing and delivered, or sent postage prepaid, by first class mail, with or without return receipt requested, or sent by an local or overnight courier service with tracking capabilities or faxed to the parties at their addresses shown below, and shall be deemed served when so delivered or deposited in the United States Postal Service, courier service and/or upon receipt of the fax. Any party may designate by notice a new or different address, from time to time in accordance herewith.  

CHATTER BUZZ MEDIA, LLC

Attn.: AGENCY DIRECTOR

1218 E. Robinson Street

Orlando, Florida 32801

GOVERNING LAW AND JURISDICTION

1. This Agreement shall be governed by, interpreted under and enforced in accordance with the laws of the State of Florida. Venue and jurisdiction of any action or proceeding arising out of or connected with this Agreement shall lie exclusively in the state courts of competent jurisdiction of the Ninth Judicial Circuit, in and for Orange County, Florida, or the United States District Court for the Middle District of Florida, Orlando Division. The parties expressly waive all other jurisdiction and venue. Any provision hereof which in any way may be construed to violate or contravene the laws of this State shall be deemed not to be a part of this Agreement and the remaining terms of the Agreement shall, in all other respects, remain in full force and effect.

WAIVER

1. The failure of any party to require performance by any other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by any party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

SEVERABILITY

1. The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto

ATTORNEY’S FEES AND COSTS

1. In the event of a dispute arising under this Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including attorneys’ fees and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of recoverable attorneys’ fees and costs. The reasonable costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable.

NO SOLICITATION / NON-CIRCUMVENTION

1. During the period beginning with the Effective Date and ending 12 (twelve) months after the termination of this Agreement, neither party nor its affiliates will offer employment to or hire any employee of the other party or its affiliates without the prior written consent of the employing party. For purposes of the preceding sentence, the terms “employment” and “employee” shall include any form of employment, consulting, contract relationship, or other arrangement pursuant to which such individual will, directly or indirectly, perform services for the other party. Violation of this first provision of Section 8.8 shall subject the violating party to actual damages, or, at the option of the aggrieved party, liquidated damages equal to 20% (twenty percent) of the greater of: (a) the first year’s compensation promised to such employee; (b) the first year’s compensation actually paid to such employee; or (c) the last year’s compensation paid to such employee. Compensation for purposes of the preceding sentence shall include of the value of any fringe benefits, bonuses, stock, stock options, use of automobiles or other compensation. Further, Client agrees that it will not contract directly or indirectly with any of the service providers utilized by Provider to provide any of the Services under this Agreement for a period of 12 (twelve) months following the termination of this Agreement unless such service provider had provided identical services to Client within six (6) months prior to the execution of this Agreement. Violation of this second provision of Section 8.8 shall subject the violating party to actual damages, or, at the option of the aggrieved party, liquidated damages equal to 25% (twenty five percent) of the total amount due to a service provider for services performed in violation of this Agreement.

ENTIRE AGREEMENT

1. This Agreement and the Exhibits hereto constitute the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any prior or collateral agreements with respect to the subject matter hereof with the exception of any prior confidentiality agreements between the parties. This Agreement may only be changed by mutual, written agreement of authorized representatives of the parties.