January 10, 2019
These Standard Business Terms (this “Agreement”), of the date set forth above (the “Effective Date”), is between WESJONES.CO, LLC (“Company”) and [INSERT CLIENT NAME] (“Client”). The parties agree as follows:
1. Client Relationship.
Wherever used in this Agreement, the term “Client” means Client, its parent, subsidiary, affiliated and associated companies, its or their successors or assignees. Company is unable to commence services until this Agreement is executed and returned to Company at the address herein.
2. Services; Change Orders.
Company will provide to Client the services (the “Services”) and deliverables (the “Deliverables”) described in one or more Statements of Work (each, an “SOW”), which, upon their execution by the parties, will be attached to this Agreement. In the event of any conflict between the terms of the SOW and the terms of this Agreement, the terms of the SOW will control. To the extent necessary to perform the Services, Client hereby grants Company authority to execute contracts with third parties “as agent” for Client; provided, however, that Company shall not represent itself as Client.
If Client wishes to change any Services or Deliverables after execution of the applicable SOW, Client shall provide a written description of the requested change, and Company shall advise as to whether the requested change affects feasibility, performance time, or cost. Any change to the SOW will not be binding on the parties unless in a written and signed change order (a “Change Order”).
3. Delivery and Approval.
Company will use commercially reasonable efforts to deliver the Deliverables to Client on or before the applicable estimated dates of completion set forth in the SOW. Each Deliverable will be subject to Client’s reasonable approval. If Client does not reject a Deliverable within two (2) business days of delivery, the Deliverable will be deemed approved and accepted. Client acknowledges that the timeliness of delivery under a SOW is contingent upon prompt approval of each Deliverable under that SOW.
Subject to Company’s receipt of full payment for all undisputed amounts due under the applicable SOW, Company hereby assigns to Client all right, title, and interest in the Deliverables, except that Company retains all right, title, and interest in any work product created before the Effective Date.
Client shall pay Company all fees detailed in the applicable SOW (the “Fees”) on the specified payment date(s). Additionally, Client shall pay Company's reasonable, pre-approved, out-of-pocket expenses and third-party charges incurred by Company in connection with the Services (the “Expenses”). Client hereby waives any claim or dispute arising from a Fee or Expense that is not disputed by the payment deadline stated in the applicable invoice.
During the term of this Agreement and for two (2) years after the expiration or termination of this Agreement (and indefinitely with respect to trade secrets), each party shall protect the Confidential Information of the other from improper disclosure, and shall limit use and disclosure thereof to its own employees and subcontractors bound to maintain the confidentiality of the Confidential Information. “Confidential Information” is information that pertains to the businesses, products, technologies, ideas and customers of each party, other information which is valuable to such party or information that is marked or verbally indicated as confidential, but does not include information that (a) is generally known to the public, (b) is in the recipient’s possession before receipt from the disclosing party, (c) is disclosed to Company by a third party without breach of confidentiality obligations, or (d) is independently developed by the recipient without reference to the Confidential Information of the disclosing party.
During the term of this Agreement and for twelve (12) months after the expiration or termination of this Agreement (the “Restricted Period”), Client shall not, directly or indirectly, solicit, hire, or otherwise engage the services of the Company’s employees or contractors that are in direct contact with Client over the course of Services (collectively, “Restricted Resources”) without Company’s prior written consent. If, during the Restricted Period, Client engages any Restricted Staff without Company’s consent, Client shall pay to Company an origination fee equal to 18% of the total fee or salary paid to Restricted Staff during the Restricted Period. The parties acknowledge that the foregoing fee is not a penalty and is a reasonable fee in light of the benefit provided by the Company to the Client.
Company shall be entitled to appoint one or more subcontractors to carry out all or any of its obligations under this Agreement.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF CLIENT USAGE IN THE TRADE OR BY COURSE OF DEALING. To the extent the Services include any media-buying services, Client acknowledges that (a) Company may not have control over the content adjacent to any advertisement, and (b) Company cannot guarantee any minimum level of revenue or return-on-investment from a paid-media campaign.
10. Indemnity and Liability.
Company shall indemnify, defend and hold Client and its subsidiaries, affiliates, parents, partners and licensees harmless from and against any loss, cost, liability, damage or expense (including reasonable attorney’s fees and expenses) any of them may incur or be liable for as a result of third-party claims or demands arising from Company’s gross negligence, willful misconduct, or breach or alleged breach of Company’s obligations hereunder. Client shall defend (at its own cost and expense), indemnify, defend and hold Company and its subsidiaries, affiliates, parents, partners and licensees harmless from and against any loss, cost, liability, damage or expense (including reasonable attorney’s fees and expenses) any of them may incur or be liable for arising from Client’s gross negligence, willful misconduct, or breach or alleged breach of Client’s obligations hereunder. Each party’s maximum liability to the other party, whether arising under claim of tort (including negligence), contract or otherwise, will not exceed the total amounts paid or payable under the SOW giving rise to liability. Neither party shall be responsible for delays or lack of performance resulting from causes beyond a party’s reasonable control, including delays and nonperformance caused by viruses, denial-of-service attacks, third-party acts or omissions, strikes, lockouts, work slowdowns or stoppages, fires, acts of God, or terrorism.
11. Awards Submissions.
Client and Company agree that all submissions of the work under any SOW for awards, whether initiated by Client or Company, will bear joint credit substantially in the following form:
Agency: Client / Company
Award Show: [award organizations]
Entry: [categories for entry]
Company may submit the work under this Agreement and applicable SOW for awards in the will inform Client of such submissions.
12. Public Relations.
Client grants Company the usage right to include Client in its list of representative clients and case studies, and may utilize representative creative content developed (as part of the Deliverables) for Client, excluding any Confidential Information of Client, for the purposes of marketing Company’s services to potential clients.
13. Term & Termination.
The term of this Agreement commences on the Effective Date and will remain in effect until terminated. Either party may terminate this Agreement for convenience upon giving thirty (30) days’ prior written notice to the other party. Upon termination of this Agreement by the Client, the Client shall pay Company (a) all Fees and Expenses earned or incurred up until the effective date of termination, and (b) any agreed-upon early termination fees detailed in the applicable SOW. Upon termination or expiration of this Agreement, each party shall return all Confidential Information of the other party.
This Agreement will be governed by New York law, without regard to any conflict of laws principles. If a provision of this Agreement is deemed unenforceable as written, such provision shall be interpreted so as to give it legal force, and all other provisions of the Agreement will remain in full effect. All disputes relating to this Agreement will be resolved by the state and federal courts sitting in New York County, New York. The prevailing party will be awarded all costs and fees of collection and arbitration, including without limitation reasonable attorneys’ fees. This Agreement, together with any SOWs and any change order to any SOWs, embodies the parties’ entire understanding and agreement with respect to the subject matter hereof and supersedes any and all prior and contemporaneous discussions and communications (written and oral) regarding such subject matter. Headings are for convenience only and do not constitute terms of this Agreement. Execution and delivery of this Agreement may be in counterparts evidenced by facsimile transmission. Sections of this Agreement that by their nature would survive termination or expiration shall so survive, including but not limited to Sections 4 through 14.