Effective date: 07/01/2021
Purchasing
organization, referred to as (CLIENT), and Digital Dacia Limited referred to as
(AGENCY), agree as entered into this agreement on the date and time of the
order submission.
EMPLOYMENT OF
AGENCY:
CLIENT hereby
permits the AGENCY to render, and AGENCY agrees to render to CLIENT, all the
services customarily performed by a digital internet advertising and marketing
agency within such budgets as CLIENT may set from time to time for advertising,
marketing and development efforts as defined by this contract (AGREEMENT).
ADVERTISING
& PRODUCTION RATES:
1. Media costs, setup fees, production costs & hourly rates are to be
set by AGENCY.
2. Rates are subject to change at any time by AGENCY, with the exclusion of
existing advertising programs or agreements currently in place.
ACCEPTANCE OF
AGREEMENTS:
1. All potential forms of signature shall be governed by this AGREEMENT
including, but not limited to, checking the agreement to “terms of service”
box, written signature on individual project AGREEMENTs, electronic signatures,
faxed signatures, scanned and emailed signatures, clear stated email approvals,
and/or any other electronically clearly stated agreement to proposed change or
program.
PAYMENT &
BILLING TERMS:
1. CLIENT hereby agrees to pay the fees in price and schedule as listed on
the agreement completed by CLIENT or in the proposal submitted to CLIENT.
2. If full advertising budget (when applicable) is not spent due to online
demand or inventory, in the event there are additional months of advertising,
balance will be applied to the upcoming month(s) unless prior written
communication states that any unspent amounts are to be refunded & will be
promptly refunded within 7 business days.
3. CLIENT hereby grants permission for AGENCY to charge CLIENT’s credit,
debit card or bank account on file according to the price and schedule listed
on the agreement or proposal every month for the amount agreed to as the
monthly spend under AGREEMENT. If the invoiced budget is a one-time charge then
no monthly charge will apply. Monthly payments will be put on auto-bill and
will automatically be charged to the credit card on file on the same day every
month as the first payment date made.
4. CLIENT agrees to pay upon execution of this agreement. AGENCY reserves
the right to stop work until payment is made. Should collection activities
become necessary, CLIENT agrees to pay all fees relating to said collection
activities.
5. AGENCY reserves the right to add late fee of 5% per month on outstanding
invoices at least one month past due.
EXPENSES:
2. CLIENT shall not be obligated to reimburse AGENCY for any travel or
other out-of-pocket expenses incurred in the performance of services pursuant
to this AGREEMENT unless expressly agreed by CLIENT in advance.
3. AGENCY shall not be obligated to reimburse CLIENT for any travel or
other out-of-pocket expenses incurred in the performance of services pursuant
to this AGREEMENT unless expressly agreed by AGENCY in advance.
MAKE
GOODS/SCHEDULING CORRECTIONS/TECHNOLOGY CONFLICTS:
1. In the event of an error, whether human (AGENCY or vendors of AGENCY) or
technology based, AGENCY shall provide CLIENT notification and make all
reasonable efforts with CLIENT approval or CLIENT discretion to make good on
planned contractual obligations.
EXCLUSIVITY:
1. CLIENT agrees that AGENCY is the exclusive provider of all contracted
and executed management and services during the duration of this agreement.
INDEMNIFICATION:
1. AGENCY shall indemnify and hold CLIENT harmless with respect to any
claims, loss, suit, liability or judgment suffered by AGENCY, including
reasonable attorney’s fees and costs, based upon or related to any item
prepared by AGENCY or at AGENCY’s direction, including, but not limited to, any
claim of libel, slander, piracy, plagiarism, invasion of privacy, or
infringement of copyright or other intellectual property interest, except where
any such claim arises out of material supplied by CLIENT and incorporated into
any materials or advertisement prepared by AGENCY.
2. CLIENT agrees to indemnify and hold AGENCY harmless with respect to any
claims, loss, liability, damage or judgment suffered by CLIENT, including
reasonable attorney’s fees and court costs, which results from the use by
AGENCY of any material furnished by CLIENT or where material created by AGENCY
or at the direction of AGENCY subject to the indemnification in subsection 1
above is materially changed by CLIENT. Information or data obtained by AGENCY
from CLIENT to substantiate claims made in advertising shall be deemed to be
“material furnished by CLIENT to AGENCY”. 3. In the event of any proceeding,
litigation or suit against CLIENT by any regulatory agency or in the event of
any court action or other proceeding challenging any advertising prepared by
AGENCY, AGENCY shall assist in the preparation of the defense of such action or
proceeding and cooperate with CLIENT and CLIENT ‘s attorneys.
INDEPENDENT
CONTRACTOR:
1. Nothing contained herein or any document executed in connection
herewith, shall be construed to create an employer-employee partnership or
joint venture relationship between CLIENT and AGENCY. AGENCY is an independent
Contractor and not an employee of CLIENT or any of its subsidiaries or
affiliates. The consideration set forth herein shall be the sole consideration
due Contractor for the services rendered. It is understood that CLIENT will not
withhold any amounts for payment of taxes from the compensation of Contractor
hereunder. Contractor will not represent to be or hold themselves out as an
employee of CLIENT and Contractor acknowledges that he/she shall not have the
right or entitlement in or to any of the pension, retirement or other benefit
programs now or hereafter available to regular employees. Any and all sums
subject to deductions, if any, required to be withheld and/or paid under any
applicable state, federal or municipal laws or union or professional guild
regulations shall be Contractor’s sole responsibility and Contractor shall
indemnify and hold CLIENT harmless from any and all damages, claims and
expenses arising out of or resulting from any claims asserted by any taxing
authority as a result of or in connection with said payments.
REPRESENTATIONS
AND WARRANTIES:
1. The AGENCY will make no representations, warranties, or commitments
binding CLIENT without its prior consent.
LEGAL RIGHT:
1. AGENCY covenants and warrants that he/she has the unlimited legal right
to enter into this AGREEMENT and to perform in accordance with its terms
without violating the rights of others or any applicable law and that he/she
has not and shall not become a party to any other agreement of any kind which
conflicts with this AGREEMENT.
2. CLIENT covenants and warrants that he/she has the unlimited legal right
to enter into this AGREEMENT and to perform in accordance with its terms
without violating the rights of others or any applicable law and that he/she
has not and shall not become a party to any other agreement of any kind which
conflicts with this AGREEMENT.
NUMERICAL
ESTIMATES/EXPECTATIONS:
Any project
estimates provided are indicative only, since there is no guarantee of results
provided for payment made. Performance is based on best efforts in order to
renew beyond the AGREEMENT term. Actual results may be greater or less
than the numbers shared based on the relevant characteristics of each
individual business and other external factors.
APPLICABLE
LAW:
This AGREEMENT
shall be governed and construed in accordance with the laws of the United
Kingdom
ENFORCEABILITY:
If any
provision of this AGREEMENT is held by a court of competent jurisdiction to be
unenforceable, the remainder of the AGREEMENT shall remain in full force and
effect and shall in no way be impaired.
TERM &
AUTO-RENEWAL:
1. This AGREEMENT shall continue in force until either party terminates
this AGREEMENT as per the “TERMINATION” section contained herein. Either party
shall request adjustments or amendments to this AGREEMENT which will only be
executed and enforced upon agreement and written signatures of both parties.
2. This AGREEMENT will automatically renew for an additional term based on
the original term length unless CLIENT declines the automatic renewal option in
physical or electronic writing within 14 calendar days before the end of the
original term. Either party shall request adjustments or amendments to this
AGREEMENT which will only be executed and enforced upon agreement and written
signatures of both parties.
NO
ARBITRATION. Disputes
involving this AGREEMENT, including the breach or alleged breach thereof, may
not be submitted to binding arbitration (except where statutorily required) but
must, instead, be heard in a court of competent jurisdiction of the State of
Colorado.
STATUTE OF
LIMITATIONS:
Parties agree
that any action in relation to an alleged breach of this Agreement shall be
commenced within one year of the date of the breach, without regard to the date
the breach is discovered. Any action not brought within that one year time
period shall be barred, without regard to any other limitations period set
forth by law or statute.
FORCE MAJEURE:
The affected
party is excused from performance under this AGREEMENT for the duration of the
Force Majeure event thereby extending the completion date. If the Force Majeure
event continues past the agreed AGREEMENT completion date, the AGREEMENT may be
terminated and both parties excused from their liabilities. Force Majeure
events include, but not limited to, fire, explosion, strikes, riots, terrorist activity,
war, acts of nature which prohibit travel, and acts of God.
TERMINATION OF
AGREEMENT:
1. CLIENT may initiate the process to terminate this AGREEMENT at any time.
2. Upon termination of this AGREEMENT by CLIENT, CLIENT shall pay AGENCY
all outstanding balances as well as one half of the remaining balance of the
agreement. The AGREEMENT shall not be cancelled until all balances and fees are
paid.
NONDISCLOSURE:
The AGENCy,
its employees and subcontractors agree that, except as directed by the CLIENT,
it will not at any time during or after the term of this Agreement disclose any
confidential information. Likewise, the CLIENT agrees that it will not convey
any confidential information obtained about the Developer to another party.
CONFLICTING
TERMS:
In the event
of a conflict between the terms of this Contract (including any and all
attachments thereto and amendments thereof) and the terms of Exhibit A (if
applicable), the terms of Exhibit A shall control.
SEVERABILITY:
If any
provision of this Contract is held unenforceable, then such provision will be
modified to reflect the parties’ intention. All remaining provisions of this
Contract shall remain in full force and effect.
ATTORNEY FEES:
In the event
of litigation relating to the subject matter of this Agreement, the
non-prevailing party shall reimburse the prevailing party for all reasonable
attorney fees and costs resulting therefrom.
NON-WAIVER:
Failure by one
party of this Agreement to require performance of any provision(s) shall not
affect that party’s right to require subsequent performance at any time
thereafter, nor shall a waiver of any breach or default of this Agreement
constitute a waiver of any subsequent breach or default or a waiver of the
provision itself.
PARTNERSHIP OR
AGENCY:
The
relationship between parties is not to be construed as a partnership or agency
and this Contract does not create either form of relationship.
CONSEQUENTIAL
DAMAGES:
Neither party
to this Agreement will be held responsible for consequential (indirect) damages
(e.g., loss of profit) because of any alleged failures by the other party.
SIGNATURE
AUTHORITY:
Both parties
warrant that they have read and understand the terms set forth in this
agreement. Each party hereby represents and warrants that s/he is duly
authorized to execute and deliver this Agreement on behalf of Other Party and
that this Agreement is binding upon Other Party in accordance with its terms.
NON-CIRCUMVENT:
1. CLIENT, its officers, directors, employees, agents, affiliates, consultants,
subsidiaries, assignees or any individual or any entity acting on its behalf,
shall not make any contact with, deal with or otherwise involve itself or
themselves in any transaction with any Vendor, Employee or Contractor of AGENCY
without the prior written permission of the AGENCY.
2. CLIENT, its officers, directors, employees, agents, affiliates,
consultants, subsidiaries, assignees or any individual or any entity acting on
its behalf, confirm that any corporation, organization, firm, company or individual
of which any of the above-referenced individuals or entities is a party to,
employee of, member of, or otherwise which would benefit financially from an
association, is bound by this AGREEMENT, and shall not conduct any business
with any Client, Employee, Vendor or Contractors in circumvention of the terms
and conditions of this AGREEMENT, to the financial or other detriment of
AGENCY. CLIENT shall so instruct its officers, directors, employees, agents,
affiliates, consultants, subsidiaries, assignees or any individual or any
entity acting on its behalf, whether currently or during the time period during
which this AGREEMENT is in effect, and shall take all necessary steps to bind
them to the terms and conditions of this AGREEMENT, as well as agree that
CLIENT shall be jointly and severally liable for any liability incurred by any
of its officers, directors, employees, agents, affiliates, consultants,
subsidiaries, assignees or any individual or any entity acting on its behalf,
arising from any breach of the terms, conditions and obligations of this
AGREEMENT.
3. In the event that the AGENCY ends its contractual or business
relationship with any of its current or future Vendors, Employees or
Contractors, CLIENT agrees that it shall not directly enter into any subsequent
contractual or business relationship with any such former Vendors, Employees or
Contractors provided that this provision does not impose any obligation that
CLIENT terminate or breach any valid or enforceable AGREEMENT that it may have
entered into with any Vendor, Employee or Contractor of AGENCY prior to the
beginning of the contractual or business relationship between AGENCY and
CLIENT, provided that at the expiration of any such AGREEMENT, CLIENT shall not
enter into any subsequent AGREEMENT, whether oral or written, with any such
former Vendor, Employee or Contractor.
4. These terms shall be valid and enforceable for five (5) years from the
Effective Date and is to be applied to any and all transactions entered into by
the CLIENT, and all those bound to the terms and conditions of this AGREEMENT,
including follow-up repeat, extended or renegotiated transactions regardless of
the success of the project. The CLIENT, its officers, directors,
employees, agents, affiliates, consultants, subsidiaries, assignees or any
individual or any entity acting on its behalf, hereby confirm that the
identities of the Vendors, Employees and Contractors, and each of them, are
proprietary to the AGENCY and shall remain so for the duration of this
AGREEMENT.
5. In the event that the CLIENT, any of its officers, directors, employees,
agents, affiliates, consultants, subsidiaries, assignees or any individual or
any entity acting on its behalf breaches any term or condition of this
AGREEMENT, CLIENT acknowledges that the amount of damages potentially incurred
by the AGENCY would be difficult to ascertain, and agrees to pay to the AGENCY
liquidated damages in the amount of Ten Thousand Dollars ($10,000.00), per
breach, in addition to any additional or alternative liability for any other
legal or equity remedy available to the AGENCY.
6. The Parties agree that the terms and conditions of this AGREEMENT,
including but not limited to its existence, and the nature thereof, and the
names of any and all Vendors, Employees and Contractors, shall be considered
strictly confidential, and shall not be revealed to any third party, including
but not limited to any Vendor, Employee or Contractor, at any time, even after
the AGREEMENT has expired or terminated. CLIENT shall take all necessary
steps to ensure that those entities and individuals bound by the terms and
conditions of this AGREEMENT shall maintain the confidentiality obligations
established herein. In the event that CLIENT, or any of its officers,
directors, employees, agents, affiliates, consultants, subsidiaries, assignees
or any individual or any entity acting on its behalf, breach this
confidentiality provision, the CLIENT, or any individual or entity acting on
its behalf, shall be subject to the liquidated damages address in section 5,
above, in addition to any additional or alternative liability for any other
legal or equity remedy available to the AGENCY.
ENTIRE
AGREEMENT:
This AGREEMENT
constitutes the entire AGREEMENT between the parties with respect to the
Project subject matter. It supersedes all previous AGREEMENTs and
understandings between the parties and each party acknowledges that, in
entering into this AGREEMENT, it does not do so on the basis of or in reliance
upon any representations, promises, undertakings, warranties or other
statements (whether written or oral) of any nature whatsoever except as
expressly provided in this AGREEMENT. Thus, this Contract and attached Exhibits
constitute the sole AGREEMENT between the Developer and the CLIENT. The
Contract becomes effective when signed by CLIENT. Submission of this contract
by Developer implies lawful signature and acceptance of terms.
Digital Dacia Limited
Company Number 13047731
VAT Number 366 8939 31