Terms & Conditions
This MARKETING CONSULTANT AGREEMENT (this “Agreement”) is made and entered into on purchase date (the “Effective Date”), by and between SBM PARTNERS LLC, a Georgia limited liability company (“Social Story”), DBA SOCIAL STORY and PURCHASER (the “Company”). Social Story and the Company are also referred to herein each as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, Social Story is in the business of providing, among other things, marketing consulting, including social media marketing strategy, third party technology recommendations and implementation, content development, content execution, social media public relations;
WHEREAS, the Company would like to grow its business by retaining a marketing consultant; and
WHEREAS, the Company desires to engage Social Story to provide certain marketing consulting and additional, related services, as set forth on Exhibit A attached hereto (the “Services”), and Social Story desires to be so engaged in such capacity, in each case in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties agree as follows:
1. Engagement.
1.1 Engagement; Term. Effective as of the Effective Date, the Company hereby engages Social Story to serve as its marketing consultant, to perform the Services, including to develop and implement social media marketing strategies on behalf of the Company (as described in Exhibit A) during the Term (as defined in Exhibit A). Social Story hereby accepts such appointment, subject to the terms and conditions of this Agreement. Compensation In consideration for the Services to be rendered by Social Story hereunder, the Company agrees to pay Social Story, and Social Story agrees to accept as full and complete compensation for the performance of the Services, the purchase fee(s). Non-Exclusive Agency. Nothing in this Agreement shall be deemed to prohibit or limit Social Story’s right to enter into marketing or other agency agreements with any other individual, partnership, corporation, trust, limited liability entity, association or other entity (each, a “Person”), and nothing herein shall be deemed to prohibit or limit the Company’s right to enter into marketing consulting or other agency agreements with any other Person. Independent Contractors. It is expressly agreed and understood that Social Story shall at all times act strictly and exclusively as an independent contractor and neither Social Story, nor any employee, agent or representative thereof, shall be considered under the provisions of this Agreement or otherwise as having any employee status with the Company. The Company will not be liable for any employment or withholding taxes on behalf of Social Story or any employee of Social Story. It is not the purpose or intention of this Agreement or the Parties to create, and the same shall not be construed as creating, any partnership relation, joint venture, agency, or employment relationship.
Responsibilities of Social Story. During the Term, Social Story shall: (x) take such actions as Social Story deems necessary in its discretion (and in good faith) in order to provide the Services; (y) materially comply with all applicable laws, statutes and regulations applicable to the Company’s business; and (z) use commercially reasonable efforts to maintain all necessary permits, approvals, consents, licenses and registrations as are necessary in connection with performing the Services.
Responsibilities of Company. During the Term, the Company shall, upon reasonable request by Social Story, provide any information and support requested by Social Story from time to time regarding the Company’s business in connection with Social Story’s performance of the Services.
2. Intellectual Property Rights.
The Company agrees and acknowledges that except as otherwise agreed in writing between the Parties, all drawings, documents, analysis, reports, computations, summaries, evaluations, formulas and any other materials contained in any medium or media created or developed by Social Story under this Agreement on the Company’s behalf (the “Materials”), and all other work performed, created or developed under this Agreement, including any Materials that constitute the final work product being provided to the Company under this Agreement (collectively, the “Works”), shall be owned solely, exclusively and entirely by Social Story. Social Story hereby grants the Company a non-exclusive, perpetual, royalty-free license\ to use solely in connection with the Company’s business such of the Works as Social Story may deliver to the Company for the Company’s use, including, but not limited to, copyright rights, patent rights, moral rights and all other intellectual property rights in such Works (the “Rights”). For the avoidance of doubt, any underlying materials of the Company used by Social Story in connection with creating any Works shall remain the property of the Company.
2.2 Whenever the Company is reasonably requested to do so by Social Story, the Company shall execute any additional documents reasonably deemed necessary by Social Story to confirm or effectuate Social Story’s full and exclusive ownership of the Works.
3. Representations, Warranties & Limitation of Liability.
3.1 The Company’s Representations and Warranties. The Company hereby represents and warrants to Social Story that: (a) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; and (b) when executed and delivered by each of the Company and Social Story, this Agreement will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
3.2 Social Story’s Representations and Warranties. Social Story represents and warrants to the Company that: (a) it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; and (b) when executed and delivered by each of the Company and Social Story, this Agreement will constitute the legal, valid and binding obligation of Social Story, enforceable against Social Story in accordance with its terms.
3.3 Limitation of Liability. In no event shall Social Story be liable to the Company for any punitive, special, incidental, consequential, multiple or other indirect damages including, without limitation, loss of revenues or profits, whether arising out of or as a result of breach of contract, warranty, tort (including negligence), strict liability, or otherwise. Social Story shall not have any liability of any kind or nature (including for negligence) in excess of the aggregate amount of payments actually paid to Social Story hereunder except in the case of a judicial finding of intentional fraud, gross negligence or willful misconduct against Social Story.
4. Term; Termination.
4.1 Term. The Term of this Agreement shall be as set forth on Exhibit A, unless terminated sooner as set forth below.
4.2 Termination. The Term of this Agreement may be terminated prior to the expiration date by either party: (a) upon a breach by either Party of any material obligation of such Party under this Agreement and failure to cure such breach within ten (10) days of receipt of written notice (emailing being sufficient) of such breach from the other Party; (b) if either Party becomes insolvent or files or has filed against it, a petition for voluntary or involuntary bankruptcy, or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for the appointment of a trustee, receiver or custodian for a substantial portion of its property; or (c) for convenience, upon thirty (30) days’ prior written notice to the other Party.
4.3 Effect of Termination. Upon the expiration or termination of this Agreement Social Story shall cease to represent itself as a consultant or agent of the Company.
5. Confidentiality.
5.1 Confidential Information. In order for Social Story to perform the Services, it may be necessary for the Company to provide Social Story with Confidential Information regarding the Company’s business and products. The Company will rely upon Social Story’s judgment regarding use of any such Confidential Information, which Confidential Information shall be used by Social Story in the best interests of the Company. For purposes of this Agreement, “Confidential Information” shall mean any specific customer and supplier information, sales and market analysis, financial information, product technical data not distributed to the general public, product pricing data, methods of business operations, methods of distribution and sale, methods of conducting or obtaining business, personnel records and information, the manner or process of manufacture of any of the Company’s products or any formulation or process used in the manufacture of any of the Company’s products, patents, inventions, customer lists, know-how, trade secrets or confidences, and product use, development, application, performance data and records.
6. General Provisions.
6.1 Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that court shall substitute in place of the unenforceable provision a less restrictive provision to the maximum extent enforceable so as to carry out the intent of the parties as expressed herein. The invalidity or unenforceability of any provision of this Agreement shall not invalidate the remainder of this Agreement, which will remain in full force and effect as if such invalid or unenforceable term and never been included. Amendments. In order to be effective, any amendment or modification to this Agreement whatsoever must be made in writing and signed by both Parties to this Agreement.
6.2 Governing Law; Choice of Venue. The internal law, not the law of conflicts, of the State of Georgia shall govern all questions concerning the construction, validity and interpretation of this Agreement and the performance of the obligations imposed by this Agreement. The parties hereby consent and agree that the Circuit Court of Fulton County, Georgia or, if the Circuit Court of Fulton County, Georgia is unavailable, any other Georgia state court or federal court of the United States of America sitting in Georgia, shall have exclusive jurisdiction to hear and determine any claims or disputes among the parties pertaining to this Agreement or to any matter arising out of or related to this Agreement. The parties expressly submit and consent in advance to such jurisdiction in any action or suit commenced in any such court, hereby waive any objection which any of them may have based upon lack of personal jurisdiction, improper venue or forum non conveniens and hereby consent to the granting of such legal or equitable relief as is deemed appropriate by such court. Should SBM Partners file a lawsuit for breach of this Agreement and prevail (i.e., receive a judgment in its favor in the amount of one dollar ($1.00) or more), then SBM Partners shall be entitled to its reasonable attorneys’ fees and costs related to such lawsuit.
6.3 Entire Agreement. This Agreement shall constitute the entire agreement between the Parties hereto regarding the subject matter hereof and shall supersede any prior agreement, offers, proposals, understandings, and other communications between the Parties or their representatives, oral or written, regarding the subject matter hereof, and no other agreement concerning the subject matter hereof shall be binding upon any Party unless in writing and signed by authorized representatives of all Parties. Without limiting the foregoing, this Agreement supersedes and replaces any existing nondisclosure, confidentiality or similar agreement between the Parties.
6.4 Successors and Assigns. This Agreement shall bind and inure to the benefit of and be enforceable by Social Story, the Company and their respective heirs, executors, personal representatives, successors and assigns, except that neither Party may assign any rights or delegate any obligations hereunder without the prior written consent of the other Party.
6.5 Notices. All notices, demands, requests, solicitations or consent or approval and other communications required or permitted hereunder shall be in writing and shall be deemed to have been given when sent by hand delivery, confirmed email, telecopy (followed notice of transmission, postage paid, by U.S. registered or certified mail, return receipt requested), or overnight delivery service with acknowledged receipt, addressed to the other Party at the address listed on the signature pages hereto, or to such other addresses which such Party shall have given for such purpose by notice hereunder.
6.6 Counterparts. This Agreement may be executed in one (1) or more original, facsimile or electronically transmitted (.pdf) counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument.
6.7 Waivers. No waiver under this Agreement is effective unless it is in writing and signed by the Party waiving such right. The waiver by either Party of the breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either Party. No failure or delay to enforce, or partial enforcement of, any provisions of this Agreement shall operate as a waiver of such provision or any other provision.
6.8 Miscellaneous. This Agreement is the result of negotiations between and has been reviewed by each of the Parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the Parties hereto, and no ambiguity shall be construed in favor of or against any one of the Parties hereto.Exhibit A, Sections 1.4, 4, 5.3, 6.2, 7 and 9.6 shall survive any termination of this Agreement and remain binding irrespective of any breach or claimed breach of any obligation by either party.
EXHIBIT A
Services
1. Social Story Deliverables. Social Story is in the business of social media marketing consulting, including marketing strategy, third party technology recommendations and implementation, content development content execution, social media public relations, and other marketing services offered and developed by Social Story, whether now or in the future, whether or not related thereto (collectively, the “Services”).
RECITALS
WHEREAS, Social Story is in the business of providing, among other things, marketing consulting, including social media marketing strategy, third party technology recommendations and implementation, content development, content execution, social media public relations;
WHEREAS, the Company would like to grow its business by retaining a marketing consultant; and
WHEREAS, the Company desires to engage Social Story to provide certain marketing consulting and additional, related services, as set forth on Exhibit A attached hereto (the “Services”), and Social Story desires to be so engaged in such capacity, in each case in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties agree as follows:
1. Engagement.
1.1 Engagement; Term. Effective as of the Effective Date, the Company hereby engages Social Story to serve as its marketing consultant, to perform the Services, including to develop and implement social media marketing strategies on behalf of the Company (as described in Exhibit A) during the Term (as defined in Exhibit A). Social Story hereby accepts such appointment, subject to the terms and conditions of this Agreement. Compensation In consideration for the Services to be rendered by Social Story hereunder, the Company agrees to pay Social Story, and Social Story agrees to accept as full and complete compensation for the performance of the Services, the purchase fee(s). Non-Exclusive Agency. Nothing in this Agreement shall be deemed to prohibit or limit Social Story’s right to enter into marketing or other agency agreements with any other individual, partnership, corporation, trust, limited liability entity, association or other entity (each, a “Person”), and nothing herein shall be deemed to prohibit or limit the Company’s right to enter into marketing consulting or other agency agreements with any other Person. Independent Contractors. It is expressly agreed and understood that Social Story shall at all times act strictly and exclusively as an independent contractor and neither Social Story, nor any employee, agent or representative thereof, shall be considered under the provisions of this Agreement or otherwise as having any employee status with the Company. The Company will not be liable for any employment or withholding taxes on behalf of Social Story or any employee of Social Story. It is not the purpose or intention of this Agreement or the Parties to create, and the same shall not be construed as creating, any partnership relation, joint venture, agency, or employment relationship.
Responsibilities of Social Story. During the Term, Social Story shall: (x) take such actions as Social Story deems necessary in its discretion (and in good faith) in order to provide the Services; (y) materially comply with all applicable laws, statutes and regulations applicable to the Company’s business; and (z) use commercially reasonable efforts to maintain all necessary permits, approvals, consents, licenses and registrations as are necessary in connection with performing the Services.
Responsibilities of Company. During the Term, the Company shall, upon reasonable request by Social Story, provide any information and support requested by Social Story from time to time regarding the Company’s business in connection with Social Story’s performance of the Services.
2. Intellectual Property Rights.
The Company agrees and acknowledges that except as otherwise agreed in writing between the Parties, all drawings, documents, analysis, reports, computations, summaries, evaluations, formulas and any other materials contained in any medium or media created or developed by Social Story under this Agreement on the Company’s behalf (the “Materials”), and all other work performed, created or developed under this Agreement, including any Materials that constitute the final work product being provided to the Company under this Agreement (collectively, the “Works”), shall be owned solely, exclusively and entirely by Social Story. Social Story hereby grants the Company a non-exclusive, perpetual, royalty-free license\ to use solely in connection with the Company’s business such of the Works as Social Story may deliver to the Company for the Company’s use, including, but not limited to, copyright rights, patent rights, moral rights and all other intellectual property rights in such Works (the “Rights”). For the avoidance of doubt, any underlying materials of the Company used by Social Story in connection with creating any Works shall remain the property of the Company.
2.2 Whenever the Company is reasonably requested to do so by Social Story, the Company shall execute any additional documents reasonably deemed necessary by Social Story to confirm or effectuate Social Story’s full and exclusive ownership of the Works.
3. Representations, Warranties & Limitation of Liability.
3.1 The Company’s Representations and Warranties. The Company hereby represents and warrants to Social Story that: (a) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; and (b) when executed and delivered by each of the Company and Social Story, this Agreement will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
3.2 Social Story’s Representations and Warranties. Social Story represents and warrants to the Company that: (a) it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; and (b) when executed and delivered by each of the Company and Social Story, this Agreement will constitute the legal, valid and binding obligation of Social Story, enforceable against Social Story in accordance with its terms.
3.3 Limitation of Liability. In no event shall Social Story be liable to the Company for any punitive, special, incidental, consequential, multiple or other indirect damages including, without limitation, loss of revenues or profits, whether arising out of or as a result of breach of contract, warranty, tort (including negligence), strict liability, or otherwise. Social Story shall not have any liability of any kind or nature (including for negligence) in excess of the aggregate amount of payments actually paid to Social Story hereunder except in the case of a judicial finding of intentional fraud, gross negligence or willful misconduct against Social Story.
4. Term; Termination.
4.1 Term. The Term of this Agreement shall be as set forth on Exhibit A, unless terminated sooner as set forth below.
4.2 Termination. The Term of this Agreement may be terminated prior to the expiration date by either party: (a) upon a breach by either Party of any material obligation of such Party under this Agreement and failure to cure such breach within ten (10) days of receipt of written notice (emailing being sufficient) of such breach from the other Party; (b) if either Party becomes insolvent or files or has filed against it, a petition for voluntary or involuntary bankruptcy, or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for the appointment of a trustee, receiver or custodian for a substantial portion of its property; or (c) for convenience, upon thirty (30) days’ prior written notice to the other Party.
4.3 Effect of Termination. Upon the expiration or termination of this Agreement Social Story shall cease to represent itself as a consultant or agent of the Company.
5. Confidentiality.
5.1 Confidential Information. In order for Social Story to perform the Services, it may be necessary for the Company to provide Social Story with Confidential Information regarding the Company’s business and products. The Company will rely upon Social Story’s judgment regarding use of any such Confidential Information, which Confidential Information shall be used by Social Story in the best interests of the Company. For purposes of this Agreement, “Confidential Information” shall mean any specific customer and supplier information, sales and market analysis, financial information, product technical data not distributed to the general public, product pricing data, methods of business operations, methods of distribution and sale, methods of conducting or obtaining business, personnel records and information, the manner or process of manufacture of any of the Company’s products or any formulation or process used in the manufacture of any of the Company’s products, patents, inventions, customer lists, know-how, trade secrets or confidences, and product use, development, application, performance data and records.
6. General Provisions.
6.1 Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that court shall substitute in place of the unenforceable provision a less restrictive provision to the maximum extent enforceable so as to carry out the intent of the parties as expressed herein. The invalidity or unenforceability of any provision of this Agreement shall not invalidate the remainder of this Agreement, which will remain in full force and effect as if such invalid or unenforceable term and never been included. Amendments. In order to be effective, any amendment or modification to this Agreement whatsoever must be made in writing and signed by both Parties to this Agreement.
6.2 Governing Law; Choice of Venue. The internal law, not the law of conflicts, of the State of Georgia shall govern all questions concerning the construction, validity and interpretation of this Agreement and the performance of the obligations imposed by this Agreement. The parties hereby consent and agree that the Circuit Court of Fulton County, Georgia or, if the Circuit Court of Fulton County, Georgia is unavailable, any other Georgia state court or federal court of the United States of America sitting in Georgia, shall have exclusive jurisdiction to hear and determine any claims or disputes among the parties pertaining to this Agreement or to any matter arising out of or related to this Agreement. The parties expressly submit and consent in advance to such jurisdiction in any action or suit commenced in any such court, hereby waive any objection which any of them may have based upon lack of personal jurisdiction, improper venue or forum non conveniens and hereby consent to the granting of such legal or equitable relief as is deemed appropriate by such court. Should SBM Partners file a lawsuit for breach of this Agreement and prevail (i.e., receive a judgment in its favor in the amount of one dollar ($1.00) or more), then SBM Partners shall be entitled to its reasonable attorneys’ fees and costs related to such lawsuit.
6.3 Entire Agreement. This Agreement shall constitute the entire agreement between the Parties hereto regarding the subject matter hereof and shall supersede any prior agreement, offers, proposals, understandings, and other communications between the Parties or their representatives, oral or written, regarding the subject matter hereof, and no other agreement concerning the subject matter hereof shall be binding upon any Party unless in writing and signed by authorized representatives of all Parties. Without limiting the foregoing, this Agreement supersedes and replaces any existing nondisclosure, confidentiality or similar agreement between the Parties.
6.4 Successors and Assigns. This Agreement shall bind and inure to the benefit of and be enforceable by Social Story, the Company and their respective heirs, executors, personal representatives, successors and assigns, except that neither Party may assign any rights or delegate any obligations hereunder without the prior written consent of the other Party.
6.5 Notices. All notices, demands, requests, solicitations or consent or approval and other communications required or permitted hereunder shall be in writing and shall be deemed to have been given when sent by hand delivery, confirmed email, telecopy (followed notice of transmission, postage paid, by U.S. registered or certified mail, return receipt requested), or overnight delivery service with acknowledged receipt, addressed to the other Party at the address listed on the signature pages hereto, or to such other addresses which such Party shall have given for such purpose by notice hereunder.
6.6 Counterparts. This Agreement may be executed in one (1) or more original, facsimile or electronically transmitted (.pdf) counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument.
6.7 Waivers. No waiver under this Agreement is effective unless it is in writing and signed by the Party waiving such right. The waiver by either Party of the breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either Party. No failure or delay to enforce, or partial enforcement of, any provisions of this Agreement shall operate as a waiver of such provision or any other provision.
6.8 Miscellaneous. This Agreement is the result of negotiations between and has been reviewed by each of the Parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the Parties hereto, and no ambiguity shall be construed in favor of or against any one of the Parties hereto.Exhibit A, Sections 1.4, 4, 5.3, 6.2, 7 and 9.6 shall survive any termination of this Agreement and remain binding irrespective of any breach or claimed breach of any obligation by either party.
EXHIBIT A
Services
1. Social Story Deliverables. Social Story is in the business of social media marketing consulting, including marketing strategy, third party technology recommendations and implementation, content development content execution, social media public relations, and other marketing services offered and developed by Social Story, whether now or in the future, whether or not related thereto (collectively, the “Services”).
