Silverback Strategies, Inc. (“Silverback”) a Delaware Corporation, hereby agrees to provide CLIENT (hereinafter “Client”) with online marketing services (as defined in Section 1), subject to the Client’s compliance with the Terms and Conditions hereinafter outlined (the “Terms and Conditions”). Please read the Terms and Conditions carefully. As a client engaging Silverback for its marketing services, Client agrees to be bound by these Terms and Conditions, both for current and for any additional services for which it may contract with Silverback (the “Services”), together with all SOWs (as defined below) agreed upon by the Parties and the “Schedule of Fees” attached thereto (collectively, the “Agreement”). Client and Silverback are collectively referred to as the “Parties” and individually as a “Party.”
IN CONSIDERATION of the foregoing, the mutual promises and undertakings set forth below, and other good and valuable consideration exchanged by the parties, the receipt and sufficiency of which are acknowledged by the parties, the parties agree as follows:
- 1.1 Client hereby engages Silverback to provide the Services identified in one or more Statement(s) of Work (each an “SOW”) executed by the Parties from time to time, each of which is incorporated herein by reference and made a part hereof as if fully set forth herein.
- 1.2 Conflict Between Agreements. In the event of a conflict between any term of this Agreement and any SOW, this Agreement will control. Silverback is solely responsible for determining the method, details, means and manner for performing the Services specified in an SOW.
- 1.3 Services Standards. Silverback will use commercially reasonable efforts in the performance of the Services.
- 1.4 Account Representative. During the Term, each Party will make available an individual representative who will serve as the primary point of contact in dealing with the other Party during the Term of this Agreement (each representative an “Account Representative”). Each Account Representative: (a) must be reasonably acceptable to the other Party and, (b) will communicate regularly with the other Party’s Account Representative. The Client’s Account Representative will have the power and authority to make routine decisions with respect to actions taken by Silverback in the ordinary course of day-to-day management of Client’s account with Silverback and, to bind the Client with any authorization as may be required from time to time for any approvals related to matters including but not limited to the Services, additional work, charges, fees, and third party fees.
- 1.5 Independent Contractor Status of the Parties. The Parties and their respective personnel are, and will continue to be, independent contractors with respect to each other. By virtue of this Agreement, neither Party or its personnel and contractors will become, and under no circumstances will be construed as being, an employee, agent, joint venturer, partner or affiliate of the other Party or as standing in any relationship with respect to the other Party that would impose liability on the other Party for the actions or omissions of such Party, its personnel or its contractors.
- 1.6 Authority. Each Party represents and warrants that (a) it has the full power and authority to enter into this Agreement; and (b) this Agreement has been executed by a duly authorized representative of such Party and contains the valid and binding obligations and agreements of such Party, enforceable against such Party, in accordance with all of the terms contained herein, subject to enforcement of applicable bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights.
- 1.7 Compliance with Laws. Each Party represents and warrants that it will comply with all applicable laws and regulations in its performance of its obligations hereunder.
Compensation and Billing Procedures.
- 2.1 Fees. In consideration of the Services provided to Client by Silverback under this Agreement, Client will pay Silverback the fees as set forth in the Schedule of Fees incorporated herein by reference and made a part hereof as if fully set forth herein.
- 2.2 Prior Approval of Expenditures and Campaign Materials. Silverback will secure Client’s prior written approval before making any expenditure or commitment on Client’s behalf or before releasing any material to any third party under the terms of any SOW. Client must approve, and will be solely responsible for all rights with respect to, all creative materials used in executing the Services, including but not limited to keywords, ad copy, photographs, sketches, copy, layouts, transcripts, film, artwork, designs and advertisements (collectively, the “Advertisements”). Email will be a sufficient form for seeking approval for and communicating Client’s approval of the Advertisements.
- 2.3 Payment Process. Client will be invoiced on the first day of each month for the previous month’s Services. Invoices are payable Net 30 via ACH. All invoices for media purchases will be issued by the third party directly to Client and will be payable by Client in accordance with the terms and conditions of the third party (each, a “Media Provider”). Unless agreed upon in advance in the Schedule of Fees, all third party media costs, including but not limited to those from Google, Yahoo!, Bing and other search, social and display advertising platforms, will be payable directly by Client. Without limiting the foregoing, Client will reimburse Silverback for any and all expenses, including but not limited to media costs paid on behalf of the Client which amounts Silverback may bill for as part of the Services in accordance with this Section 2.4 , at the rates set forth in the Schedule of Fees. Silverback will use commercially reasonable efforts to obtain invoices on a timely basis for the costs of media from the Media Providers. Silverback will not be held responsible for any charges, fees, interest or the like due to the Media Providers in the event that Client fails to make payment and/or fails to timely pay the fee due to any Media Provider.
- 2.4 Payment Liability. Client agrees: (i) to make payment to Silverback, either directly or through a designee, on the terms and at the rates indicated in the Schedule of Fees; (ii) to be responsible for, or immediately to reimburse upon presentment, any and all, costs, expenses and reasonable attorneys’ fees incurred by Silverback in recovering any unpaid invoices by Client; (iii) that all decisions to grant credit or require advance payment are at the sole discretion of Silverback; (iv) that any late payments made by Client to Silverback will constitute a breach of this Agreement and, if said breach is not cured following three days written notice from Silverback, the breach will be grounds for immediate termination of all Services in any SOW, and the Client’s unpaid balance will accrue interest at the rate of one (1%) percent per month or the amount applicable by law, whichever is greater; and (v) that Client is solely liable for all media costs incurred during the Term of this Agreement. If a request to pause the campaign is made electronically by Client, the Client must also telephone Silverback to confirm Silverback’s receipt of the request to pause the campaign. If the Client fails to confirm Silverback’s receipt of their request to pause the campaign, Silverback is not responsible for any charges incurred by Client during this period.
- 2.5 Reporting. Silverback will provide or grant access to the reporting ordinarily made available from the Media Providers upon the request of Client, either electronically or in writing, on a weekly or monthly basis, unless otherwise described in the SOW.
Term and Renewal.
The Term of this Agreement commences on the Effective Date and will continue for 12 months (the “Initial Term”). Thereafter, this Agreement will automatically renew on a month-to-month basis (each, a “Renewal Term,” and together with the Initial Term, the “Term”) unless either Party provides the other Party with prior written notice of at least sixty (60) days indicating their intent to terminate the Services prior to the expiration of the then-current Term. For clarity (i) upon any expiration of termination of this Agreement, all SOWs will expire, (ii) an SOW may expire or terminate on its own without affecting the continuation of this Agreement or any other SOW.
- 4.1 Silverback’s Termination for Breach. Following any breach of any material term of this Agreement by a Party, the non-breaching Party may, after fifteen (15) days advance written notice identifying the specific breach, elect to terminate this Agreement or any SOW if the breaching Party has not cured said breach within such fifteen (15) day period following receipt of such notice.
- 4.2 Obligations Upon Termination. Upon termination of this Agreement for any reason, and full payment for any Services or related costs owed to Silverback, Silverback will transfer to Client or any third party designated by Client the campaign data consisting of any available reservations and contract information with Media Providers and by assigning where permitted any arrangements with Media Providers or others for Advertisement space and the rights and claims thereto and therein (the “Data Transfer”). During this Data Transfer, Client will pay Silverback its hourly rate of $200 per hour for any Services undertaken to effectuate the Data Transfer. Upon Client’s written request, Silverback will during the Data Transfer attempt to cancel (where permitted) any contracts designated by Client that are not to be performed after expiration of the Data Transfer, it being understood by Client that in some cases such cancellation may result in cancellation fees due from Client to the applicable Media Provider.
- 5.1 Confidential Information.
- (a) Both Parties acknowledge that during the Term of this Agreement, each Party will have access to and contact with Confidential Information (as defined in this Section below) of the other Party. The Parties agree they will not (i) use any Confidential Information for its own benefit or for the benefit of any third party, and (ii) disclose any Confidential Information to any third party who does not have a need to know such Confidential Information in connection with the activities contemplated under this Agreement and if so disclosed will do so only under an obligation regarding the use and non-disclosure of such Confidential Information that is at least as protective as the obligation set forth in this Agreement. Each Party will protect the Confidential Information of the other Party using efforts consistent with those used to protect its own Confidential Information, but in no event less that a reasonable degree of care, and will use Confidential Information only for the purpose of the relationship and Services contemplated by this Agreement.
- (b) For purposes of this Agreement, “Confidential Information” means, by way of illustration and not limitation, any and all information concerning the business of either Party or either Party’s customers, Work Product (defined below), written records pertaining to Work Product, vendor information, equipment, trade secrets including client lists, processes, research, reports, technical data, know-how, marketing or business plans, forecasts, tax information, unpublished financial information or business results, budgets, prices, costs and employee lists that are communicated to, learned of, developed or otherwise acquired by either Party during the Term of this Agreement and thereafter.
(c) The Parties’ obligations under this Section 5.1 will not apply to any information that: (i) was rightfully possessed by either Party before it was received from the other Party; (ii) is independently developed by either Party without reference to the other Party's’ Confidential Information; (iii) is subsequently furnished to either Party by a third party not under any obligation of confidentiality with respect to such information or data, and without restrictions on use or disclosure; or (iv) is or becomes public or available to the general public through means other than by any act or default of either Party.
(d) Upon termination or expiration of this Agreement or SOW for any reason and, in any event, upon one Party's request to the other, the requested Party will deliver to the other Party all Confidential Information in its possession; provided, that either Party may retain archival copies stored electronically (e.g., on backup tapes) solely for archival purposes.
- 5.2 Ownership of Work Product. Upon payment of all fees due hereunder, Client will own all right, title and interest in and to all intellectual property and work product created for Client by Silverback under this Agreement that Client approves for use, including without limitation any work, media plans, research, ad copy, photographs, advertisement, promotion, keywords, campaigns, accounts preliminary drafts, plans for advertising, sketches, copy, layouts, transcripts, film, artwork, data and designs that are created by Silverback during the performance of the Services (collectively, the "Work Product").
- 5.3 Remedies. Each Party acknowledges that any breach of any of the provisions of this Section 5 by it may result in serious and irreparable injury to the non-breaching Party for which the non-breaching Party may not be adequately compensated by monetary damages alone. Therefore, each Party agrees that, in addition to any other remedy it may have at law or otherwise, the non-breaching Party will be entitled to seek both temporary and permanent injunctive relief to the extent permitted by law without requiring the posting of a bond.
- 6.1 Silverback represents and warrants that (a) it has the full power and authority to enter into and perform this Agreement, (b) all obligations to be performed hereunder will be performed with all reasonable care, skill and diligence (c) it has all necessary and appropriate rights to fulfill its obligations hereunder, (d) it will comply at all times with all laws and regulations applicable to Silverback in any jurisdiction in which Silverback acts, (e) its Services will be performed in a professional and workmanlike manner in accordance with applicable professional standards, (f) the individual executing this Agreement on behalf of Silverback is authorized to do so, and (g) it has and will have no financial interest in any Media Provider from which Silverback contracts for Services on behalf of Client under this Agreement. Silverback will complete any work not in compliance with this warranty that is brought to the attention of Silverback by Client in writing within thirty (30) days of such written notice from Client.
- 6.2 Disclaimer. THE PRECEDING PARAGRAPHS CONTAIN SILVERBACK’S ONLY WARRANTIES CONCERNING THE SERVICES AND ALL OF ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
Indemnification by the Parties.
- 7.1 Silverback Indemnity of Client. Silverback will defend, indemnify and hold harmless Client and its directors, officers, volunteers, shareholders, employees and agents from and against any third-party claims, demands, loss, cost, damage, expense or liability (including reasonable attorneys' fees and costs) assessed against or incurred by the indemnitees that arises out of or relate to: (a) the grossly negligent or intentionally wrongful acts or omissions of Silverback or its employees acting in the scope of their employment; or (b) any claim that the Work Product, including any Advertisement or other materials delivered under this Agreement, infringes any copyright or trade secret of any third party.
- 7.2 Client Indemnity of Silverback. Client will defend, indemnify and hold harmless Silverback and its directors, officers, volunteers, shareholders, employees and agents from and against any third-party claims, demands, loss, cost, damage, expense or liability (including reasonable attorneys' fees and costs) assessed against or incurred by the indemnitees that arises out of or relate to: (a) the grossly negligent or intentionally wrongful acts or omissions of Client or its employees acting in the scope of their employment; or (b) any claim that any Advertisement or Social Post infringes any trademark of any third party or constitutes false advertising, business interference or a similar claim with respect to a third party’s rights or that any other work provided by Client to Silverback for use in an Advertisement infringes the copyright of any third party.
- 7.3 Indemnification Claim. The indemnities in this Section 7 are contingent upon: (a) the indemnified Party promptly notifying the indemnifying Party in writing of any claim which may give rise to a claim for indemnification hereunder; (b) the indemnifying Party being allowed to control the defense and settlement of such claim; and (c) the indemnified Party cooperating with all reasonable requests of the indemnifying Party (at the indemnifying Party's expense) in defending or settling a claim. The indemnified Party will have the right, at its option and expense, to participate in the defense of any suit or proceeding through a counsel of its own choosing. An indemnitee will not make any settlement of any claims that may give rise to liability of an indemnitor without the prior written consent of the indemnitor.
Limitation of Liability.
Each Party’s maximum liability for direct damages under or in relation to this Agreement (regardless of form of action, whether in contract, negligence or otherwise) will be limited to the fees paid by Client to Silverback during the six (6) month period immediately preceding the claim. In no event will either Party be liable to the other Party for any consequential, special, incidental, punitive or indirect loss, damage or expense, even if it has been advised of their possible existence. Any award subject to indemnification hereunder shall be deemed a direct damage for purposes of this Section 8.
Silverback will carry and maintain, at its expense, commercial general liability insurance covering bodily injury (including personal injury) and property damage with a combined single limit of not less than $1,000,000 per occurrence/annual aggregate. A certificate of insurance evidencing the above coverage will be delivered to Client upon its request.
Silverback’s Limited Authority to Act.
Client grants Silverback the limited authority to act on Client’s behalf as a media agent in order to perform the Services approved by Client, and Client hereby retains Silverback as Media Provider of Record for that purpose. Notwithstanding Silverback’s designation of “Media Provider of Record,” the relationship between the parties hereto will not be one of a principal and agent nor exclusive, and Client has the right to use any other media service(s) entities and/or to purchase media space on its own.
Obligations Regarding Media Providers.
- (a) Silverback will exercise commercially reasonable efforts in selecting Media Providers.
- (b) Silverback will use commercially reasonable efforts to: (i) secure advantageous rates available from Media Providers; and (ii) to obtain available discounts and concessions from the Media Providers.
- (c) Client will be entitled to its share of any discounts, rebates, allowances, refunds, concessions and similar adjustments and payments negotiated by Silverback with any Media Providers that are actually received. Silverback will either credit to Client’s account all such adjustments or remit directly to Client such adjustments within a reasonable time after receipt.
- (d) Notwithstanding the foregoing, Silverback reserves the right to pre-purchase in bulk and resell to Client advertising space from Media Providers, in which case Silverback shall be entitled to retain a profit from such inventory when resold to Client.
- (e) Subject to the terms and conditions in Section 4, if Client directs Silverback to modify, cancel or terminate any previously authorized contract with a Media Provider, Silverback will promptly take all appropriate action to meet Client’s request. Client acknowledges that it may be liable for early termination or modification fees or similar charges as a result of a modification, cancellation or termination under certain contracts with Media Provider(s) and Client will hold Silverback harmless with respect to any costs incurred by Silverback as a result of such modification, cancellation or termination.
Except as provided otherwise herein, any notices or communications regarding this Agreement from one Party to the other will be in writing and will be effective when (a) personally hand-delivered to the Party for whom intended, (b) upon confirmation of receipt when sent via facsimile, (c) upon confirmation of receipt when sent by overnight courier, signature requested or (d) after five (5) days following deposit of the same into the United States mail (certified mail, postage prepaid and return receipt requested). For project approvals and expense approvals under this Agreement, email communications are considered sufficient for purposes written communications.
- 13.1 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision, including but not limited to acts of god, acts of war or breaches of the peace, acts of terrorism or threatened acts of terrorism, riots, civil disturbances, labor disturbances, strikes, lockouts, failure of a telecommunications or power carrier to provide adequate service, inadequacy or failure of a carrier or shipper, governmental regulations or interference, or any similar or dissimilar causes beyond the reasonable control of a party, the Party affected in its performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence. However, should the affected Party’s inability to perform continue for a period of thirty (30) days or more, the other Party may terminate this Agreement upon providing ten (10) days written notice.
- 13.2 Use of Names or Marks and Advertisements. Client hereby grants to Silverback a non-exclusive license to use the Client’s marks and logos (“Client Trademarks”) and Advertisements for the purposes of performing the Services described herein for the duration of the Term, including a right to sublicense such right to Media Providers in connection with the placement of all Advertisements. All uses of the Client Trademarks by Silverback will be subject to the prior written approval of Client, including the review of any promotional material bearing or containing any Client Trademarks, which approval will not be unreasonably withheld, conditioned or delayed. Client will at all times use commercially reasonable efforts to approve or reject proposed uses, materials or activities submitted to Client hereunder in an expeditious and prompt manner. Email will be considered an acceptable form for seeking such approval and receiving such written approval. Silverback may publicly identify Client in any public announcement, press release, promotional or other material and may use any names, URLs, domain names, trademarks, service marks, logos, slogans or other words or phrases identifying Client in any promotional or other materials with Client’s prior review and consent, which consent will not be unreasonably withheld or delayed. Upon Client’s consent Silverback may create and produce a case study, or the like, with regard to the Services performed by Silverback for Client pursuant to this Agreement. Such case study, or the like, may be used in the sole interest and for the benefit of Silverback in promoting and/or advertising Silverback’s services. Client may publicly identify Silverback in any public announcement, press release, promotional or other material and may use any names, URLs, domain names, trademarks, service marks, logos, slogans or other words or phrases identifying Silverback in any promotional or other materials with Silverback’s prior review and consent, which consent will not be unreasonably withheld.
- 13.3 Waiver and Severability. The waiver by either Party of a breach or a default of any provision of this Agreement by the other Party will not be construed as a waiver of any succeeding breach of the same or any other provision, nor will any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such Party. If any term or provision of this Agreement will be found by a mediator, arbitrator, or court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same will not affect the other terms or provisions hereof or the whole of this Agreement, but such provision will be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the Parties will be construed and enforced accordingly, preserving to the fullest extent possible the intent and agreements of the Parties set forth herein.
- 13.4 Headings. Captions and headings contained in this Agreement have been included for ease of reference and convenience and will not be considered in interpreting or construing this Agreement.
- 13.5 Survival. The provisions of Sections 1.6, 2, 4.2, 5, 6.2, 7, 8, 12 and 13 will survive any termination of this Agreement.
- 13.6 Assignment.
- (i) This Agreement, and the rights and obligations hereunder, may not be assigned, in whole or in part by Silverback, except to a successor to the whole of Silverback’s business, without the prior written consent of Client. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions will be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the Parties hereto.
- (ii) This Agreement and the rights and obligations hereunder, may not be assigned, transferred, and/or delegated, in whole or in part by Client, except to a successor of the whole of Client’s business provided Silverback has been given written notice of such successor.
- 13.7 Access to and Retention and Examination of Records. Client will have the right during normal business hours to examine Silverback’s records exclusively related to expenditures on behalf of Client’s business, as well as any and all contracts, correspondence, books and other sources of information relating solely to Client’s business. However, Client will notify Silverback in advance of any such examination to ensure that such records are made available to Client at Silverback’s premises and such Examination may not occur more than once during any Six (6) month period under this Agreement.