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Digital Marketing Services Agreement
DIGITAL MARKETING SERVICES AGREEMENT
THIS DIGITAL MARKETING SERVICES AGREEMENT (this “Agreement”) is effective upon the date (the “Effective Date”) of first payment received by Clear To Close Digital, Inc. (hereinafter referred to as “Agency”), by and between Person and/or Entity that made first payment. (hereinafter referred to as “Client”).
A. Client is in the business of providing Home Loan Products & Services.
B. Agency is in the business of providing Digital Marketing Services.
C. Client desires that Agency provide various digital marketing services in support of various matters as more fully set forth on the Statement(s) of Work (as defined in Section 2.1 of this Agreement). Agency is willing to undertake such activities, and the parties hereto desire that all of the rights, duties and obligations of the parties be governed in accordance with the terms of this Agreement.
NOW, THEREFORE, based on the foregoing facts and in consideration of the mutual covenants and conditions contained in this Agreement, the Client and Agency hereby agree as follows:
TERM OF AGREEMENT
This Agreement shall commence as of the Effective Date set forth above, and shall continue for a minimum of 3 monthly payments with a 9 month commitment thereafter. (the "Term"). CLIENT CAN CHOOSE TO TERMINATE AGREEMENT IN WRITING ON OR BEFORE THE 60th DAY.. All other terminations are set forth in Section 5.0 below. This Agreement may be extended for successive one (1) year terms thereafter (each a “Renewal Term”) with the mutual written agreement of the parties. For purposes of this Agreement, “Term” shall include the initial Term and any Renewal Terms.
SCOPE OF SERVICES
2.1 Statement(s) of Work. During the Term of this Agreement, Service Provider will perform all of the services and prepare the materials and provide the deliverables (collectively, the "Services") in connection with the completion of the projects described in certain Statements(s) of Work (the “Statement(s) of Work”), which will become subject to and made a part of this Agreement upon receipt of first payment to agency. The Statements of Work will be in the form of the Statement of Work attached hereto as Exhibit A and incorporated herein by this reference, or as otherwise designated by Agency. Any conflict or inconsistency between the terms of this Agreement and a Statement of Work will be resolved in favor of this Agreement unless otherwise expressly set forth in the applicable Statement of Work. The Services shall be performed in accordance with the schedule in the applicable Statement of Work.
2.2 No Guaranteed Sales Volume Associated With Services; Non-Exclusive Services. Agency makes no promises or representations whatsoever as to the amount of sales volume Client can expect at any time under the Agreement. The parties understand and agree that Client, in its sole discretion, may use any third party to perform similar services provided hereunder by Agency.
3.1 Payment for Services. In consideration for the Services to be provided by Agency hereunder, Client shall pay Agency in the manner, at the rates and at the time(s) indicated in the relevant Statement of Work.
3.2 Invoices. Unless otherwise stated in the relevant Statement of Work, Agency shall invoice Client for Digital Marketing Services. No services will be provided until the first payment is received by Agency.
3.3 Expenses. Unless otherwise specifically set forth in the relevant Statement of Work, Client shall be responsible for the payment of all of the expenses arising from the performance of the Services under this Agreement, which shall be determined at the commencement of the Agreement and shall remain fixed during the Term of the Agreement.
4.1 Confidential Information. For purposes of this Agreement, the term "Confidential Information" shall be deemed to include all information and materials furnished by or on behalf of any of Client to Agency and/or otherwise arising from and/or in connection with the Services, including, without limitation, all information transmitted in writing, orally, visually (i.e., video terminal display) or on magnetic media. "Confidential Information" as defined herein shall not include information that:
4.1.1 is or becomes known to the public through no fault of Agency (provided, however, with respect to Client’s customer names, purchase dates, addresses, e-mail addresses, telephone numbers and other similar information obtained pursuant to the provision of Services hereunder, such information shall remain Confidential Information hereunder even if known to the public);
4.1.2 is known to Agency prior to its receipt or becomes known to Agency by disclosure from a third party who has a lawful right to disclose the information; or
4.1.3 is known to Agency from its own independent development of same, as established by Agency.
All Confidential Information shall remain the property of Client at all times. Agency shall use such Confidential Information only for the purpose, and to the extent necessary, to fulfill its obligations under this Agreement (and the applicable Statement of Work). In any event, Agency shall promptly return all Confidential Information to Client no later than the termination of this Agreement or immediately upon request of Client.
4.2 Nondisclosure. Agency agrees and acknowledges that it shall have no proprietary interest in the Confidential Information and will not disclose, communicate nor publish the nature or content of such Confidential Information to any person or entity, nor use, except as authorized in writing by Client, any of the Confidential Information Agency produces, receives, acquires or obtains from Client and/or as a result and/or arising from this Agreement. Agency shall take all necessary steps to insure that the Confidential Information is securely maintained. Agency’s obligations set forth herein shall survive the termination or expiration of this Agreement.
4.3 Resale of Leads Data. For purposes of this Agreement, the leads are for the sole use by the Client’s marketing and cannot be resold to other entities. The Client and/or its subsidiaries, employees, agents, representatives or affiliates agrees and acknowledges that the Information provided by Agency pursuant to this Agreement and/or any such Licenses shall at all times remain the exclusive property of Agency, and further that the Client and/or its subsidiaries, employees, agents, representatives or affiliates will not use or disclose Information to any party without Agency’s prior written consent.
4.4 Trade Secrets, Proprietary Information and Non-Competition The Client and Agency acknowledge and agree that during the Term of this Agreement and in the course of the discharge of Agency’s duties under this Agreement, Agency shall have access to and become acquainted with information concerning the operation of the Client, including, without limitation, financial, personnel, and other information that is owned by the Client and regularly used in the operation of the Client’s business, and that such information constitutes the Client’s trade secrets and/or proprietary information.
4.4 Intellectual Property All intellectual property in the lead generation software, code, data, documentation and information is owned and developed by Agency and or its affiliates shall, as between Client and Agency remain with Agency and/or its affiliates. Furthermore, Agency shall not disclose any information regarding lead generation software.
5.1 Termination without Cause; Cancelled Services. After the initial 90 days have expired without cancellation, client agrees to completing the full (1) one year term of this agreement. If client does cancel without cause, despite the agreed upon initial (1) one year term of this agreement, Client agrees to (a) pay Agency, in accordance with the provisions of this Agreement, 25% of the remaining balance of the annual Invoice amount. (b) cover any Service Provider out of pocket expenses or costs incurred as a consequence of such modification, rejection or cancellation, and In any event, the amount owed to Service Provider in respect to the cancellation of any Services shall not exceed the amount that would have been owed had the cancelled Services been completed.
5.2 Termination with Cause – Client. Client may terminate this Agreement (and/or any of the Statements of Work), in whole or in part, immediately by giving Agency written notice of termination if:
5.2.1 Agency breaches the confidentiality or competitive restriction provisions of this Agreement;
5.3 Termination with Cause – Agency. Agency may terminate this Agreement (and/or any of the Statements of Work), in whole or in part, immediately by giving Client written notice of termination if Client fails to timely remit payment for any portion of the Invoice as set forth above.
6.0 GENERAL PROVISIONS
6.1 Notices. All notices, accountings, payments, etc., which either party desires or is required to give to the other shall be given in writing by personal delivery, overnight courier, or sent by United States mail postage prepaid, return receipt requested, or facsimile transmission acknowledged as received followed by personal or mail delivery addressed as follows:
All such notices shall be effective upon receipt or refusal thereof; provided, however, with respect to facsimile transmissions, delivery is deemed to have occurred upon receipt of confirmation of successful facsimile transmission, and should a transmission be completed after regular business hours of the recipient of said transmission, such notice shall be deemed to have been received on the next business day. Either party may change its notice address by a notice given to the other in the manner provided for in this Section.
6.2 Governing Law. The internal laws of the United States shall be applicable to the interpretation of this Agreement without regard to conflicts of law principles thereof.
6.3 Waiver. The waiver of any of the terms or provisions of this Agreement in any one or more instances shall not be deemed a permanent waiver thereof or a waiver of this entire Agreement. No waiver shall be effective unless in writing signed by the waiving party.
6.4 Severability. If any provision of this Agreement is determined to be unenforceable, the parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable. The balance of the Agreement shall continue in full force and effect.
6.5 Headings. The captions and headings in this Agreement are inserted only as a matter of convenience and for reference and in no way define the scope or content of this Agreement or the construction of any provision hereof or of any document or instrument referred to herein.
6.7 Alternative Dispute Resolution. Any dispute, claims and/or causes of action arising out of or relating to this Agreement or the Service (including without limitation, any alleged violation of this Agreement, any controversy relating to the arbitrability of any dispute, or any claim that this Agreement (or any part thereof) is invalid, illegal or otherwise voidable (or void)) (collectively, “Dispute”) shall be resolved in accordance with the procedures specified in this Section 6.7, as follows, which shall be the sole and exclusive procedures for the resolution of any such Disputes:
6.7.1 Negotiation. The parties shall attempt promptly and in good faith to resolve any Dispute arising out of or relating to the Agreement by negotiation.
6.7.2 Mediation. If any Dispute should arise between the parties which cannot be resolved through negotiation, the parties shall endeavor to settle the Dispute by mediation. Either party may request in writing that the other party mediate the Dispute; such notice shall set forth the subject of the Dispute and the relief requested. Unless the parties otherwise agree, the mediation shall be conducted by a mediator affiliated with and under the rules of: ADR Services - Alternative Dispute Resolution, or JAMS - Judicial Arbitration & Mediation Services. The selection of an organization by the parties shall be made within ten (10) business days after a party requests mediation of a Dispute pursuant to this provision. If an organization/judge and applicable rules have not been agreed upon within such ten-day period, then the Dispute shall be mediated by a neutral chosen by JAMS.
6.7.3 Arbitration. If within forty-five (45) days of the first mediation session, the Dispute is not resolved, either party may serve the other party with a written notice of binding arbitration. Unless the parties otherwise agree, the arbitration shall be conducted by and under the commercial arbitration rules of the same organization that conducted the mediation. The arbitration shall be conducted by one arbitrator.
6.7.4 Damages. The arbitrator or arbitrators are not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover such damages including, without limitation, punitive damages, special damages and consequential damages in any forum.
6.7.6 Governing Law. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. Section 1 et seq., to the exclusion of state laws inconsistent therewith and judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof.
6.7.8 Confidentiality. All negotiations and proceedings pursuant to this Section 6.7 are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence and any additional confidentiality protections provided by applicable law.
6.8 Limitation of Liabilities. Agency shall not be liable under any circumstances for lost opportunities or profits, or for consequential, special, punitive or indirect damages of any kind. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL Agency BE LIABLE TO CLIENT FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHETHER OR NOT SUCH LOSS OR DAMAGE IS CAUSED BY THE FAULT OR NEGLIGENCE OF Agency, ITS EMPLOYEES, OR AGENTS.
6.9 Entire Agreement/Modification. No oral statements or conversations between the parties hereto or their representatives, whether the same shall have been express or implied, occurring either before or after the execution of this Agreement, shall be construed as having any bearing or affect upon this Agreement or any portion hereof, it being understood that this Agreement (including any applicable Exhibits and Statement(s) of Work) constitutes the entire agreement between Client and Agency relating to the transactions contemplated hereby. The parties agree that this Agreement shall supersede all prior offers, contracts, agreements and arrangements between the parties. This Agreement may not be modified or extended except by a written agreement signed by an authorized representative of each party.
6.10 Force Majeure. In the event that either Agency or Client is unable to perform or is precluded from performing its obligations under this Agreement due to any unforeseen circumstances beyond the reasonable control of the party precluded from performing, including, but not limited to, fire, riot or civil commotion, act of government or governmental instrumentality (whether federal, state or local), war, failure of performance by a common carrier, failure in whole or in part of technical facilities, suspension of Internet Services or any other cause beyond the reasonable control of said party (a “Force Majeure Event”), then such inability to perform shall not be deemed to be a default hereunder; provided, however, that the party declaring a force majeure event shall make all reasonable efforts to continue to meet its obligations throughout the duration of the force majeure condition; and provided, further, that the party declaring force majeure shall notify the other party promptly when the force majeure condition begins, the nature of the force majeure condition, and when such condition has terminated. The suspension of any obligations shall only last during the time the force majeure condition continues (and such reasonable time thereafter to allow said party to respond to such condition).
6.11 Interpretation. This Agreement, including any Statement(s) of Work and/or Exhibits hereto or thereto, shall be construed without the aid of any canon or rule of Law requiring interpretation against the party drafting or causing the drafting of an Agreement or the portions of an Agreement in question, it being agreed that all parties hereto have participated in the preparation of this Agreement.
STATEMENT OF WORK
Scope of Services
Agency shall manage a “Digital Marketing Campaign” on behalf of the client.
Agency’s Monthly Retainer Fee - $3000/mo as set forth hereunder for the Term of this Agreement.