BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement was last updated on June 29, 2015. It is effective between You and Us as of the date of You accepting this Agreement.

 

DEFINITIONS

Agreement” means this Service Level Agreement.

Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

 

We,” “Us“, “Our” or “Agency” means Five Tier, Inc., affiliated companies, and/or independent contractors used by Five Tier, Inc.

You“, “Your“, or “Client” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

 

AGREEMENT

NOW, THEREFORE, the parties agree as follows:

  1.      Engagement.  Client hereby engages Agency to provide, and Agency hereby agrees to provide, either itself or through independent contractors or Agency representatives (each, a “Representative”), the marketing services set forth on an Order Form.
  2.      Fees and Payment Schedule.  Client shall pay Agency the project Fees set forth on the Order Form in accordance with the payment schedule set forth therein. Prior to rendering services, Agency must be in receipt of the first initial payment, in full, as outlined in the payment schedule. Commencement of Work shall not begin until the Agency has confirmed receipt of the first scheduled payment. In addition to project Fees, Agency must receive all outlined pass-through fees prior to purchasing any pass-through items on behalf of the Client. All original invoices will be emailed to Client at Client request. If payments of engagement fees are past due or unpaid, all Representatives performing any work whatsoever for Client shall cease work immediately and shall not recommence such work until all past due project Fees are paid in full by Client.  Additionally, an interest charge at the rate of two and one-half percent (2½%) compounded per ten (10) day period where payments are outstanding or the maximum legal rate, whichever is less, will be assessed on all undisputed payments that are past due.
  1.      Intellectual Property.  Both parties recognize that each owns significant intellectual property rights.  The parties do not, by their execution of this Agreement or their activities in furtherance of any initiative contemplated hereby, intend to confer any rights of ownership or use or license of any kind in the intellectual property owned by either party or any third party prior to the date of this Agreement, other than such rights to use as are specifically provided for hereunder.

(a)    As between the parties, except for the Client’s IP, Agency shall own all right, title and interest in and to the copy, films, photographs, artwork, layouts, concepts, ideas, names, logos, trademarks, messages, themes, action programs, and other materials related to the preparation and production of marketing communications in connection with the project, whether produced by Agency or by freelancers, independent contractors or other third parties retained by Agency on Client’s behalf, or otherwise purchased by Agency for the Client’s account and whether or not such material was published, displayed, distributed, broadcast, or otherwise presented (collectively, the “Work”).  The Work shall also include all work product generated from a production shoot or similar activity and all concepts and materials presented by Agency to the Client, whether in storyboard or comparable form or otherwise.

(b)    As between the Client and Agency, the Client shall retain unrestricted rights with respect to any and all of the Work, for use in any and all media now existing or hereafter created, including but not limited to, print, internet, cellular, and satellite, whether or not used by Client in any marketing communications, subject to all third party rights, restrictions, limitations.

(c)     Upon project completion, Agency shall transfer an unrestricted license, free of any and all encumbrances or time limitations, of the final Work product to Client.

  1.      Confidentiality; Nondisclosure.  “Confidential Information” means all information, including without limitation data, technology, samples and specimens relating to both the Company and the Client and their respective products, product concepts, technologies, businesses, financial, clinical or regulatory affairs, manufacturing processes and procedures, or those of any third party from whom the Company or Client receives information on a confidential basis, whether written, graphic or oral, furnished to Company or Client by or on behalf of Client or Company, either directly or indirectly, or obtained or observed by Company or Client while providing services or receiving services hereunder, and the services to be provided by Company and received by Client hereunder, with the exception only of the following:  (a) information that is now in the public domain or subsequently enters the public domain without fault on the part of the party, Company or Client, obligated to maintain confidences pursuant to this agreement; (b) information that is presently known by Company or Client from

Company or Client’s own independent sources as evidenced by prior written records; and (c) information that Company or Client receives from a third party not under any obligation to keep such information confidential.

Any combination of features or disclosures shall not be deemed to fall within the foregoing exclusions merely because certain individual features are published or available to the general public or in the rightful possession of Company or Client unless the combination as a whole falls within any of the above exceptions.

Except as required in Company’s duties to Client and Client’s duties to Company under this agreement, Company and Client agree not to disclose or use at any time or for any purpose, either during or subsequent to the Term of this Agreement, any Confidential Information, without the prior written consent of Company or Client, to be given or withheld in Company or Client’s absolute discretion.

  1.      Term and Termination; Survival.  This Agreement shall take effect upon the Effective Date and shall continue to be in full force and effect until such time as all obligations of the parties relating to the Order Form have been satisfied, yet in no event shall this Agreement continue to be in full force and effect beyond one year, or 365 days from the date of acceptance (the “Term”) unless otherwise noted and agreed upon.  Either party may terminate this Agreement if the other party is in material breach or is in default of any obligation that is not cured within 30 calendar days.  Upon termination of this Agreement by Client before the end of the Term for any reason other than due to breach of this Agreement by Agency, Client shall compensate Agency for all services both rendered and to be provided by Agency for the minimum term of the Agreement.

Further, upon expiration or termination of this Agreement, Agency shall destroy or return to Client, at Client’s expense, all of the Client’s IP as directed by Client.  The provisions of Sections 3, 4, 5, 6, 7, 8, and 9 of this Agreement shall survive the termination or expiration of this Agreement.

  1.      Non‑Solicitation of Personnel.  During the Term of this Agreement, including extensions or modifications thereto, and for one (1) year thereafter, neither Agency nor Client, without the prior written consent of the other party, which may be withheld at that party’s sole discretion, shall directly or indirectly solicit for employment, employ or subcontract work to any Representative or professional employees of the other that are or have been assigned to work on the Project.
  1.      Service Interruption.  Client acknowledges that the services provided hereunder by Agency is of such a nature that service can be interrupted for many reasons other than the negligence of Agency and that damages resulting from any interruption of service are difficult to ascertain. Therefore, Client agrees that Agency, its affiliates, agents, employees, or licensors (including third party service providers) (collectively, the “Affiliates”) shall not be liable for any damages arising from such causes beyond the direct and exclusive control of Agency; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance through no fault of Agency; or for failures caused by third party hardware or software (including Client’s own systems); third party misuse of any website created by or at the direction of Agency for the benefit of Client; or the negligence or willful misconduct of Client.  Further, neither Agency nor the Affiliates shall be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, any act of Force Majeure, communication failure, theft, Denial of Service (DoS) attacks, destruction or unauthorized access to Agency records, programs or services, strike, and other industrial disturbance, failure to transport, accident, riot, insurrection, order of governmental agency or any other act of God.
  2.      Limitations of Liability, Exclusions.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT.  IN NO EVENT SHALL AGENCY’S TOTAL LIABILITY EXCEED THE AMOUNT EXCHANGED IN CORRELATION WITH THIS AGREEMENT.  THIS EXCLUSION OF LIABILITY DOES NOT APPLY TO EITHER PARTY’S LIABILITY TO THE OTHER FOR VIOLATION OF ITS CONFIDENTIALITY OBLIGATION, THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR IN THE EVENT OF FRAUD, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OR FOR DEATH OR PERSONAL INJURY CASUED BY THAT PARTY’S NEGLIGENCE.
  3.      Mutual Indemnification.  Each party shall indemnify and hold the other party harmless, including without limitation, its officers, directors, employees and agents from and against any and all loss, liability, damage or expenses (including reasonable attorneys’ fees and expenses), whether arising out of a claim involving a third party or between the parties to this Agreement that either party may suffer as a result of any claim of breach, negligence, property damage, personal injury or death arising from or related to the acts of the indemnifying party connected with Work.
  1.     Arbitration.  If any dispute arises under this Agreement that is not settled promptly in the ordinary course of business, the parties shall seek to resolve any such dispute between them; first, by negotiating promptly with each other in face‑to‑face negotiations.  Any controversy or claim arising out of or relating to the interpretation, enforcement or breach of this Agreement or relating to the Project or the services to be provided pursuant to the Order Form (other than actions for injunction or other equitable relief) that cannot be resolved within 20 business days (or such period as the parties shall otherwise agree) through face‑to‑face negotiations shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association.  The arbitration shall be held in such place in New York, New York, as may be specified by the arbitrators (or any place agreed to by the parties and the arbitrators).  The decision of the arbitrators shall be final and binding as to any matters submitted under this Section 10 and such decision may be enforced in any court having jurisdiction over the subject matter or over any of the parties to this Agreement.  All costs and expenses incurred in connection with any such arbitration proceeding (including reasonable attorneys’ fees and expenses) shall be borne by the party against which the decision is rendered.  If the arbitrators’ decision is a compromise, the determination of which party or parties bears the costs and expenses incurred in connection with such arbitration proceeding shall be made by the arbitrators on the basis of the arbitrator’s assessment of the relative merits of the parties’ positions.
  2.     Publicity.  Client agrees that Agency may use its name and trademarks in any news release, public announcement, advertisement, client list or other form of publicity that Agency creates, generates and/or distributes, written or oral, which describes the services performed by Agency for Client and refers to the existence of an arrangement between Client and Agency.
  3.     Miscellaneous.  This Agreement constitutes the parties’ entire Agreement concerning the subject matter hereof, and supersedes any other prior and contemporaneous communications.  All notices, authorizations, and requests given or made in connection with this Agreement must be sent by post, express courier, or facsimile to the addresses indicated by both parties.  Notices will be deemed delivered on the date shown on the postal return receipt or on the courier, or facsimile confirmation of delivery.  You may not assign this Agreement without written consent, which consent will not be unreasonably withheld.  This Agreement is governed by the laws of the State of New York.  The sections regarding fees, ownership and license, confidentiality, termination, non-solicitation, limitation of liability, mutual indemnification, publicity and miscellaneous of this Agreement will survive any termination or expiration of this Agreement.  In the event any of the provisions or portions or applications thereof of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, such invalid or unenforceable provision shall in no way affect the validity or enforceability of the remaining provisions or portions or applications thereof.
  4.     Modification.  Any and all modifications, addendums or amendments to this agreement must be made in writing and signed by both parties or their authorized representatives.

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