Instagram Targeter Program
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Terms of Service
Agency agrees to perform MARKETING SERVICES and associated services as outlined in the Statement of Work (SOW), attached hereto as Exhibit A (the “MARKETING SERVICES ”) and Client agrees to utilize Agency to perform these services.
During the term of this Agreement, Client and Agency may develop and agree upon additional SOWs for services to be provided by Agency under this Agreement. Each SOW shall be in a form agreed between the Parties, and shall in any case include a description of the services to be performed by Agency and the fees or other charges to be paid by Client. When executed by the Parties, all SOWs will be attached to, and automatically deemed incorporated into, this Agreement. Any term used in any SOW shall have the meaning ascribed to such term in this Agreement unless otherwise stated in such SOW. Subject to the terms of this Agreement and SOWs executed by the Parties, Agency will use reasonable commercial efforts to render the Services set forth in such SOWs by the completion dates set forth therein. The manner and means by which Agency chooses to complete the SOWs are in Agency’s sole discretion and control.
Completion of each phase of MARKETING SERVICES or each phase of any applicable SOW is final. At any point edits that change what was produced in a previous phase will be considered outside of the scope of any applicable SOW.
Any and all materials that Client is to supply for MARKETING SERVICES or any applicable SOW shall be delivered to Agency in electronic format (delivered on removable storage media or transmitted via the Internet), and such supplied materials shall be in final form and ready for use. Client shall proofread and edit such materials prior to delivery to Agency. Any additional work, due to corrections of such materials, file conversions, or scanning of text or images shall be billed in addition to the fee specified in any applicable SOW. Agency, agrees that any material supplied by the Client, for any applicable SOW shall be treated as confidential. Agency’s obligation to retain Clients information in confidence shall be limited so as not to apply to information that (a) becomes generally available to the public through no breach of Agency, or (b) is or becomes available to Agency on a non-confidential basis from a source other than Client or Client’s agents, or (c) Agency is required to disclose by law, regulation, or court order.
TERM AND TERMINATION
The term of this Agreement shall begin on the Effective Date and continue for three (3) months from the Effective Date. Either Party shall have the right to terminate this Agreement, in its entirety or with respect to a particular Statement of Work, by written notice to the other Party. The Agreement or particular Statement of Work, as the case may be, will be considered null and void after receipt of this written notice. Such notice shall be personally delivered; sent via email; sent by recognized overnight courier; or sent by certified mail, return receipt requested to the address listed above. In the event of any such termination, Client shall make payments to Agency for all work performed in accordance with the terms and conditions herein up to the date of termination. In the event of cancellation by the Client, the Client shall pay all expenses incurred by Elevated GRP as well as fees based on the degree of completion of the respective Statement of Work at the date of termination.
Any expiration or termination of this Agreement shall be without prejudice to the survival of: (a) any rights or liabilities (including, without limitation, payment obligations under this Agreement) accrued on or before the date of expiration or termination or (b) any other provision expressly extending beyond the term of this Agreement or necessary to interpret the rights and obligations of the Parties in connection with the expiration or termination of this Agreement. Without limitation, Sections 2(b), 3, 4, 5, 8, 9,10 and 11 shall survive expiration or termination of this Agreement.
COMPENSATION AND PAYMENT TERMS.
Compensation. Client agrees to pay Agency the consulting, design, and development fees, fixed monthly maintenance fees and agreed upon monthly variable fees for MARKETING SERVICES rendered under this Agreement as set forth in the SOW(s) undertaken by Agency and will reimburse Agency for reasonable pre-approved expenses incurred as a necessary incident to Agency’s performance of its obligations under this Agreement. Unless otherwise expressly stated in an SOW, all fees payable under this Agreement are exclusive of taxes and similar charges. Upon termination of this Agreement for any reason, Agency will be paid its fees and expenses on a proportional basis as stated in the SOW(s) for work which is then in progress, up to and including the effective date of such termination. Client agrees and acknowledges that Agency will not begin MARKETING SERVICES until this Agreement is executed by both parties, and the first payment is received by Agency.
Payments. Agency shall submit invoices to Client for all payments due and payable under this Agreement. Client shall pay to Agency the fees and expenses identified in the applicable invoice within fifteen (15) days after the date of Agency invoice. Payments due Agency under this Agreement shall, if not paid when due, bear simple interest at the lower of one and one-half percent (1.5%) per month or the highest rate permitted by law.
OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS.
As between the Parties, subject to the payment by Client of all agreed upon fees and expenses hereunder or under any applicable SOW when due, Client shall own all right, title and interest in and to any Deliverables solely for the use of any applicable SOW and Client and Agency shall jointly own all right, title and interest in and to any Reserved Materials. For purposes of this Agreement, “Reserved Materials” shall mean any and all processes, techniques, formulas, analysis, strategies, tactics, methods, procedures, and other operational instructions whether or not protectable under Title 17 of the U.S. Code, that are created for Client by Agency and whether they be created by independent contractors, employees or subcontractors of Agency and “Deliverables” shall mean all materials, information, methods, inventions, or other subject matter of a generic nature, conceived, created, or developed by Agency incidental to performance of the MARKETING SERVICES .
License. Client hereby grants to Agency a non-exclusive, worldwide, royalty-free license in and to the Deliverables and Client Materials, under all of Client’s intellectual property rights therein, solely for the purpose of performing the MARKETING SERVICES in accordance with the terms of this Agreement. Client also hereby grants to Agency a non-exclusive, worldwide, royalty-free license to use the Client Brand solely for the purpose of performing the MARKETING SERVICES in accordance with the terms of this Agreement. For purposes of this Agreement, the “Client Brand” shall mean any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by Client.
Reserved Materials: Ownership. Client and Agency jointly retain all right, title and interest in and to the Reserved Materials and all intellectual property rights embodied therein or practiced thereby.
Copyright Notice. Copyright notice for the work produced for the Client as part of any Statement of Work shall appear in the name of the Client, unless specified to the contrary. Other copyright notices, such as for photography, illustration, and music, shall be included as required in the relevant releases. The Client is responsible for any trademarks that it wishes to obtain for the work developed under any Statement of Work. All final art that is the subject of this agreement against duplication or alteration.
WARRANTIES BY CLIENT.
Client represents and warrants that it has the power to enter into and perform its duties under this Agreement; and that any material submitted to Agency for publication will not knowingly violate or infringe any copyright, trademark, patent, statutory, common law or proprietary rights of others, or contain anything knowingly deceptive, false, libelous, or harmful. Client warrants that it has the rights to use the applicable trademarks and copyrights of Client.
WARRANTIES BY AGENCY.
Disclaimer. Except as expressly set forth in this agreement or any applicable SOW, the deliverables and the MARKETING SERVICES are otherwise provided “as is,” and agency expressly disclaims all other conditions, representations and warranties, whether express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, title, non-infringement, data accuracy, system integration and non-interference, and any warranties arising from course of dealing or course of performance.
TRANSFER OF SERVICE.
Should the Agency be unable to perform the duties as outlined in this agreement for any reason, the Agency agrees to assist in the orderly transfer of service to another party of Client’s choosing.
For purposes of this Agreement, “Confidential Information” means any and all information of either Party that is of a confidential, proprietary, or trade secret nature that is furnished or disclosed to Agency in relation to this Agreement (including, without limitation, any information that is marked as “Confidential,” “Proprietary,” “Trade Secret” or in some other manner to indicate its confidential, proprietary, or trade secret nature). Confidential Information excludes any particular information that: (i) is or becomes publicly known without violation of this Agreement; (ii) is already known by either Party without restrictions as of the time of its furnishing or disclosure; or (iii) after its furnishing or disclosure, is made known by either Party without restrictions to a third party having the right to do so. All Confidential Information, as well as all media containing Confidential Information, shall remain the exclusive property of the disclosing Party.
Each Party agrees and covenants that it shall: (i) hold the Confidential Information in strict confidence and not disclose any Confidential Information to any third party without the prior written approval of the other Party; (ii) use the Confidential Information solely in accordance with the terms of this Agreement in order to carry out its obligations or exercise its rights under this Agreement; and (iii) notify the other Party promptly of any unauthorized use or disclosure of the Confidential Information and reasonably cooperate with and assist the other Party in stopping or minimizing any unauthorized use or disclosure.
Each Party further covenants and agrees to use all commercially reasonable efforts (including, without limitation, requiring the execution of written nondisclosure agreements) to ensure compliance with the provisions of this Section 8 by any of its officers and employees that have access to or became aware of the Confidential Information.
Notwithstanding the foregoing, either Party may disclose Confidential Information to the limited extent required by judicial, administrative, or regulatory process in connection with any action, suit, proceeding, claim, or otherwise by applicable law to disclose Confidential Information. Each Party shall promptly notify the other Party if permitted to do so and, if so requested, shall provide reasonable cooperation to the other Party in resisting the disclosure. Subject to its obligations stated in the preceding sentence, each Party shall be entitled to comply with any such disclosure requirement only to the extent required by law but shall in doing so make reasonable efforts to limit the scope, and secure the confidential treatment, of any materials it is compelled to disclose.
LIMITATION OF LIABILITY.
To the maximum extent allowed under applicable laws, under no circumstances, including negligence, shall agency, and its directors, officers, employees, agents, or anyone else involved in creating, producing or distributing services be liable to client for any damages of any type, including but not limited to, any lost profits, lost savings, loss of anticipated benefits, or other incidental or consequential damages arising out of the use or inability to use agency's services and consultation; or that results from mistakes, omissions, interruptions, deletion or loss of files or data, errors, defects, delays in operation, or of performance, whether or not limited to acts of god, communication failure, theft, destruction or unauthorized access to agency's records, programs or services; even if agency has been advised of the possibility of such damages or for any other claim by any other party. Client hereby acknowledges that this paragraph shall apply to all content of agency's services. In no event shall agency’s total liability to client for all damages, losses, and causes of action, whether in contract, tort, including negligence or otherwise, exceed the amount paid by client for the services rendered. The provisions of this agreement allocate risks under the agreement between agency and client and agency pricing reflects this allocation of risk and limitation of liabilities. The disclaimers, exclusions and limitations of liability set forth in this agreement form an essential basis of the bargain between the parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this agreement, including, without limitation, the economic terms, would be substantially different. Elevated GRP will exercise no control over the content of the information passing through Elevated GRP's network except those controls expressly provided herein.
RELEASES. The Client warrants that it has the right to enter into this Agreement and that Client owns or has obtained appropriate usage rights for any materials supplied by the Client to Elevated GRP.
Client agrees to defend, indemnify, save and hold Agency and its directors, officers, agents, successors, and assigns (collectively the “Indemnitee”) harmless against any and all liabilities, losses, damages, demands, claims, actions, suits, settlements, judgments, costs, or expenses, including but not limited to reasonable attorneys’ fees ("Liabilities") asserted against Indemnitee, that may arise or result from (i) any service provided or performed or agreed to be performed or any product sold by Indemnitee; (ii) any injury to person or property caused by any products or services sold or otherwise distributed in connection with Indemnitee; (iii) any material supplied by Client infringing on the proprietary rights of a third party; (iv) negligence, gross negligence, or recklessness of Client, or Client’s officers, employees, or authorized agents; (iv) Client’s breach of this Agreement; or (v) any third party claim resulting from Agency’s publication of material provided by Client or use of those materials. Notwithstanding the above, in no event shall Client be liable to indemnify and hold harmless Agency from any liability, losses, damages, costs, demands, expenses, claims, suits, actions or causes of action arising out of the sole negligence of Agency.
Agency agrees to defend, indemnify, save and hold Client and its directors, officers, agents, successors, and assigns (collectively the “Indemnitee”) harmless against any and all liabilities, losses, damages, demands, claims, actions, suits, settlements, judgments, costs, or expenses, including but not limited to reasonable attorneys’ fees ("Liabilities") asserted against Indemnitee, that may arise or result from (i) any service provided or performed or agreed to be performed by Agency; (ii) any material utilized by Agency other than that supplied by Client infringing on the proprietary rights of a third party; (iii) negligence, gross negligence, or recklessness of Agency, or Agency’s officers, employees, or authorized agents; (iv) Agency’s breach of this Agreement; or (v) any third party claim resulting from Agency’s publication of material other than that provided by Client or use of those materials. Notwithstanding the above, in no event shall Agency be liable to indemnify and hold harmless Client from any liability, losses, damages, costs, demands, expenses, claims, suits, actions or causes of action arising out of the sole negligence of Client.
This agreement shall be governed by and interpreted in accordance with the laws of the state of California, without regard to conflicts of law principles thereof or to the united nations convention on the international sale of goods. For purposes of all claims brought under this agreement, each of the parties hereby irrevocably submits to the exclusive jurisdiction of the state courts of the state of California and the federal courts of the united states sitting in the state of California.
Section headings are for the convenience of the Parties and shall not be considered when construing this Agreement. Notices shall be deemed received the same day if hand-delivered; received the next business day if sent via overnight courier or via email; or received three (3) business days after mailing if sent via registered, certified mail or regular mail. No failure of Agency to pursue any remedy resulting from a breach of this Agreement by the Client shall be construed as a waiver of that breach by Agency or as a waiver of any subsequent or other breach unless such waiver is in writing and signed by Agency. The prevailing party will have the right to collect from the other party its reasonable attorneys’ fees, costs, and necessary disbursements incurred in enforcing or in interpreting this Agreement. Agency, and its suppliers, shall not be liable for, and are excused from, any failure to perform or for delay in the performance of their obligations under this Agreement due to causes beyond their control, including without limitation, interruptions of power or telecommunications services, network difficulties, hardware malfunction, electronic malfunction, acts of nature, governmental actions, fire, flood, or natural disaster. In the event of a dispute hereunder, this Agreement shall be interpreted in accordance with its fair meaning and shall not be interpreted against either Party on the ground that such party drafted or caused to be drafted this Agreement or any part hereof, nor shall any presumption or burden of proof or persuasion be implied by virtue of the fact that this Agreement may have been prepared by or at the request of Agency or its counsel. In the event any provision of this Agreement shall be invalid, illegal or unenforceable in any respect, such a provision shall be considered separate and severable from the remaining provisions of this Agreement, and the validity, legality or enforceability of any of the remaining provisions of this Agreement shall not be affected or impaired by such provision in any way. In the event that Client directly hires an employee of the Agency, the client will pay to the agency a penalty equal to two (2) years of the employee’s salary.
All exhibits to this Agreement shall be incorporated in and constitute parts of this Agreement. This Agreement, the exhibits and any additional SOWs, each amended from time to time, constitute the entire understanding between the Parties in relation to the subject matter hereof and supersede all prior discussions, agreements and representations, whether oral or written and whether or not executed by Agency or Client. The terms of this Agreement will govern all SOWs and MARKETING SERVICES undertaken by Agency for Client or on behalf of Client for its end users. In the event of any conflict between this Agreement and a SOW, the Agreement shall control, unless the SOW expressly states that the Parties intend for the particular conflicting provision to supersede this Agreement. Unless otherwise provided in this Agreement, no modification, amendment or other change may be made to this Agreement or any part thereof unless reduced to writing and executed by an authorized representative of both parties. This Agreement may be executed in counterparts, all of which taken together constitute a single instrument. Execution and delivery of this Agreement may be evidenced by facsimile transmission.
Exhibit A: Statement of Work*
-Actively engage your target audience through liking and following them on Instagram
-Provide monthly reporting on results
*The scope of work activities listed in the proposal are estimated based on preliminary knowledge of the year ahead. Our team will work on the most results-based, meaningful work within the retainer each month. Should your business needs and activities go beyond the retainer level, we will recommend options for managing activity within the retainer or adding services and adjusting the retainer accordingly.