The terms and conditions set forth below (“Terms and Conditions”) shall govern custom services requested by you (“Client”) to be provided by Touchpoint Markets, Inc. (“Inc.”) in accordance with a fully executed statement of work agreed to by both TM and Client (“SOW”). The Terms and Conditions and the SOW shall be referred to collectively as the “Agreement.” TM and the Client are collectively referred to herein as the “Parties” and each individually as a “Party.” In consideration of the mutual promises herein contained, TM and the Client hereby agree as follows:
1. Client hereby engages TM to perform customized services (“Services”) and deliver customized deliverables (“Deliverables”) in accordance with this Agreement and specifications as agreed in writing between the Parties pursuant to a SOW. If there is a conflict between this Agreement and any SOW, the terms and conditions of the SOW shall prevail. The Services and Deliverables contracted for under the SOW are for the exclusive use and benefit of Client and may not be used by or transferred to another advertiser, in whole or in part.
2. Unless otherwise specified in an applicable SOW, TM agrees to provide Client with two (2) rounds of comments and edits of each Deliverable and TM shall deliver a third and final version pursuant to reasonable feedback from Client. In the event of any dispute or disagreement between the Parties on any of the contents or edits in any of the Deliverables, TM agrees to consider, in good faith, all reasonable comments and feedback from Client and accommodate all reasonable changes; provided that TM shall have the final approval rights. If Client, for whatever reason, is unresponsive to TM requests for feedback, changes, or approval, after 30 days of non-response TM has the right to terminate this agreement and Client is responsible for paying 100 percent of the project fees.
3. If the Services include distribution by TM of marketing emails on behalf of Client, Client shall be responsible for providing TM with a complete and accurate file containing all opt-out emails maintained by Client prior to distribution. Client shall defend, indemnify and hold TM harmless from and against all Losses (as defined below) arising out of such email distribution.
1. In consideration of the performance of the Services, and for any rights granted or relinquished by TM under this Agreement, Client shall pay to TM the fees as set forth in each SOW (“Fees”). In addition to the Fees payable, Client will reimburse TM for those expenses set forth in the SOW or otherwise pre-approved by the Client in writing (the “Expenses“), upon provision of receipts as proof that Expenses have been incurred or paid by TM in connection with this Agreement.
2. Services and Deliverables shall be subject to Client’s review and testing for conformity with the applicable SOW and any acceptance criteria agreed by the Parties. Services and Deliverables will be accepted only upon Client’s written acceptance. If Client reasonably determines that any Services or Deliverables do not conform to this Agreement, the applicable SOW, or agreed acceptance criteria (“Non-Conforming Services”), Client may reject the Non-Conforming Services by written notice describing the non-conformity, and TM shall promptly correct and resubmit the Non-Conforming Services at no additional charge. Client will have an additional ten (10) business days to review each corrected submission. If TM is unable to correct the Non-Conforming Services after a reasonable opportunity to cure, Client may terminate the affected SOW and receive a refund of any prepaid Fees for the rejected Services or Deliverables. Client’s use of Services or Deliverables during review, or failure to provide notice within a particular period, will not constitute acceptance.
3. TM payment terms are net sixty (60) days from Client’s receipt of a complete and accurate invoice for undisputed Fees and Expenses following acceptance of the applicable Services or Deliverables. Each invoice shall include reasonable supporting detail and documentation for all Fees and Expenses charged. Client may dispute any invoice item in good faith by written notice to TM and may withhold payment of the disputed amount while the Parties work in good faith to resolve the dispute. TM shall not charge interest, late fees, collection costs, suspend performance, or terminate this Agreement or any SOW with respect to amounts disputed in good faith. For undisputed amounts that remain unpaid more than ninety (90) days after the due date, TM may terminate the affected SOW upon at least thirty (30) days’ prior written notice if Client fails to cure such non-payment during the notice period, and TM may charge interest on such undisputed overdue amounts at the lesser of one percent (1%) per month or the maximum rate permitted by law from the date due until paid.
4. Client shall be responsible for applicable sales, use, excise, or similar transaction taxes imposed on the Services or Deliverables, excluding any taxes based on TM’s income, revenues, gross receipts, franchise, property, employment, payroll, or similar taxes. Client may contest the validity or applicability of any taxes in good faith, and TM shall reasonably cooperate with Client in connection with any such contest and, to the extent permitted by law, assign to Client any rights reasonably necessary for Client to pursue such contest. Client shall not be responsible for taxes arising from TM’s failure to timely invoice, collect, or remit taxes or from TM’s failure to comply with applicable law.
1. Client Content.
1. Custom Content. Subject to Client’s payment in full of the Fees hereunder, and unless specified otherwise herein or in an applicable SOW, TM acknowledges and agrees that with respect to those materials specially ordered and commissioned by, and created exclusively for, the Client (“Custom Content”), such Custom Content shall be treated as a “work made for hire” under the United States Copyright Act, and accordingly Client shall have all rights in perpetuity to exploit such Custom Content in any and all media, subject to the terms of this Agreement. To the extent that any such Custom Content is not properly characterized as a work made for hire, then, effective upon full payment by Client of all Fees, TM shall assign and hereby assigns, transfers, and conveys to the Client all right, title, and interest in such Custom Content, including all copyright rights, in perpetuity and throughout the world. Notwithstanding anything to the contrary set forth herein, Client acknowledges and agrees that TM does not convey to Client any permissions, clearances, releases, or other rights related to the persons, entities, private properties, products, trademarks, or brands, or music, voice or other audio, if any, depicted or embodied in any Deliverables.
2. Pre-Existing Client IP. Client may provide TM with pre-existing Client work product (“Client IP”), including, but not limited to, trademarks, content, templates, designs and software, (x) for potential incorporation in the Custom Content or (y) in connection with TM’s performance of program management services, as more specifically set forth in the applicable SOW. With respect to webcasts or other content wholly created by Client and provided to TM solely for program management purposes, all aspects of such materials, including, without limitation, topic, content and panelist recruitment will be created and provided by Client, unless otherwise specified to the contrary in the applicable SOW. Client retains all right, title and interest in and to its Client IP. TM reserves the right to edit, revise, or reject any Client IP that does not comply with its guidelines, is objectionable for any reason, or which, in TM’s sole and reasonable judgment, and does not comply with any applicable law, rule or regulation.
3. Grant of Rights. Client grants to TM a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free, worldwide license during the term of the applicable SOW to use Client IP and any Custom Content solely as necessary for TM to perform the Services and create the Deliverables for Client. TM shall not use Client IP, Custom Content, or any Client name, trademark, service mark, logo, trade name, or other brand identifier for any other purpose without Client’s prior written approval in each instance, except that TM may disclose such materials to approved subcontractors solely as necessary to perform the Services, provided that TM remains responsible for their use and protection of such materials.
2. TM Content.
1. Sponsored Editorial Content. Notwithstanding anything to the contrary contained herein, TM retains all right, title and interest in and to all webcasts, editorial content and any other materials created by TM and sponsored by Client pursuant to an applicable SOW (“Sponsored Content”). All aspects of Sponsored Content, including, but not limited to, topic, content and panelist recruitment will be created, provided and managed by TM, unless otherwise specified to the contrary in the applicable SOW.
2. Research Solutions. With respect to TM custom research solution offerings, notwithstanding Client’s ownership of any custom report included in the Deliverables, TM retains all right, title and interest in and to all underlying survey questionnaires created by TM in connection with such offerings and all underlying data obtained in response to such surveys (“Research Materials”).
3. Pre-Existing TM IP. TM retains all right, title and interest in and to its work product created by TM apart from or prior to the Services (“TM IP”), including, but not limited to, trademarks, content, templates, designs and software. Client shall not claim at any time during the Term of this Agreement or at any time after its expiration or termination, ownership in the intellectual property rights of the TM IP.
4. Grant of Rights. If any Research Materials or TM IP are incorporated by TM in the Deliverables, TM hereby grants to Client a perpetual, irrevocable, royalty-free, non-transferable, non-sub licensable, worldwide right and license to use such Research Materials or TM IP solely in connection with its use of such Deliverables. All such uses must be accompanied by a statement of attribution in the following form, unless otherwise provided by TM in writing: “Reprinted from [or, as applicable, “Excerpted from” or “Based on”] [REPORT/SURVEY NAME], published on [DATE]. © [YEAR] Touchpoint Markets, Inc. All rights reserved.”
This Agreement is intended to govern both a direct relationship between TM and Client as well as a relationship between TM and an advertising agency listed on an applicable SOW (“Agency”), representing the Client, in which case references to “Client” herein shall mean both Client and Agency. Unless Client gives TM written direction limiting the authority of Agency, any communication that TM may receive from Agency will be deemed to be given on behalf of, and binding on, Client, and any communication given by TM to Agency will be deemed to have been given to, and will be binding on Client. Agency represents and warrants that (a) it has the authority as Client’s agent to bind Client to this Agreement and each SOW, and that all of Agency’s actions or inactions related to this Agreement and each SOW will be within the scope of such agency; (b) Agency will defend, indemnify, and hold TM and its parent, subsidiaries, commonly owned or controlled affiliates, and their respective officers, directors and employees harmless from Losses (as defined below) resulting from Agency’s alleged breach of the foregoing sentence; and (c) all payment obligations under SOWs and the indemnification obligations set forth in Section 10 (Indemnification) shall be the joint and several liability of Client and Agency.
Client expressly acknowledges that TM may represent other clients in a similar capacity to that contemplated hereunder, and nothing contained herein shall be construed to limit TM’s right to do so.
By virtue of this Agreement, the Parties may have access to information that is confidential to one another (“Confidential Information”). Each Party agrees to maintain all Confidential Information in confidence and to use such Confidential Information only as permitted under this Agreement. Confidential Information does not include any information that (a) is or subsequently becomes available to the general public other than through a breach of this Agreement by the receiving party; (b) was in the possession of receiving party prior to the execution of this Agreement; (c) the receiving party has rightfully received from a third party without any restriction as to confidentiality or use, so long as the receiving party does not know or have any reason to know that the third party’s provision of such information or material is in violation of an obligation or duty of confidentiality; or (d) is independently developed by the receiving party without the use of Confidential Information. The Parties agree that unless required by law, they will not make each other’s Confidential Information available in any form to any third party for any purpose other than the implementation of this Agreement. After any expiration or termination of this Agreement, upon written request, either Party shall return or make reasonable efforts to destroy within ten (10) business days of written request, all originals and copies thereof of the other Party’s Confidential Information which has been fixed in any tangible means of expression, and provide written confirmation to the other that such destruction is complete (email to suffice).
1. TM or Client may terminate this Agreement upon thirty (30) days prior written notice if the other Party breaches a material provision of this Agreement such breach is incapable of cure or has not been cured within thirty (30) days of receipt of notice of such default.
2. Either Party may, at its option, immediately terminate this Agreement if a receiver is appointed for the other Party or its property; the other Party is declared insolvent or unable to pay its debts or makes an assignment for the benefit of creditors; the other Party seeks or becomes involuntarily subject to proceedings under any bankruptcy, insolvency or debtors relief law, and such proceedings have not been vacated or set aside within sixty (60) days from the date of commencement thereof; or if the other Party is liquidated or dissolved.
In consideration of the time, effort and resources TM is dedicating to perform and deliver the Services and Deliverables, Client understands and agrees that if it cancels any Services or Deliverables, then Client shall be responsible for 100% of the Fees, regardless of when the Agreement is terminated.
1. Client assumes all responsibility for compliance with applicable industry rules and regulations in the relevant jurisdiction(s), including without limitation, any attorney advertising rules or regulations. TM is not responsible for any violation of any such rules or regulations.
2. Subject to Section 9(A), each Party shall comply with all applicable laws, rules and regulations in connection with the performance of its obligations under this Agreement.
TM represents and warrants that: (i) the Services will be performed in a professional and workmanlike manner consistent with industry standards; (ii) the Services and Deliverables will comply with applicable laws, rules, and regulations; (iii) TM has the full right, power, authority, and all rights, licenses, consents, and approvals necessary to enter into and perform this Agreement and each SOW; (iv) TM personnel and any approved subcontractors performing Services are qualified and have the skill, training, and experience necessary to perform the Services; and (v) except for Client IP or other materials supplied by or on behalf of Client, the Services and Deliverables created by TM will not infringe, misappropriate, or otherwise violate any third-party intellectual property or proprietary rights. Client represents and warrants that it has the rights necessary to provide Client IP and other materials supplied by or on behalf of Client for use by TM in performing the Services.
Each Party shall defend, indemnify, and hold harmless the other Party and its parent, subsidiaries, commonly owned or controlled affiliates, and their respective officers, directors, employees, agents, successors, and permitted assigns from and against any and all third-party claims, damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ fees and costs of investigation and defense (collectively, “Losses”), arising out of or relating to: (i) the indemnifying Party’s breach of this Agreement or any SOW; (ii) the indemnifying Party’s gross negligence, willful misconduct, fraud, or violation of applicable law; or (iii) claims by the indemnifying Party’s personnel, subcontractors, or agents. Without limiting the foregoing, TM shall indemnify Client for Losses arising out of or relating to TM’s breach of its representations or warranties or any claim that the Services or Deliverables created by TM infringe, misappropriate, or otherwise violate any third-party intellectual property or proprietary rights, except to the extent caused by Client IP or other materials supplied by or on behalf of Client. Client shall indemnify TM for Losses arising out of or relating to Client IP or other materials supplied by or on behalf of Client, including the opt-out email file referenced in this Agreement. The indemnifying Party shall not settle any claim in a manner that imposes liability or obligations on, or admits fault by, the indemnified Party without the indemnified Party’s prior written consent.
EXCEPT FOR A PARTY’S PAYMENT OBLIGATIONS, CONFIDENTIALITY OBLIGATIONS, INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, VIOLATION OF APPLICABLE LAW, OR CLAIMS FOR EQUITABLE RELIEF, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SIMILAR DAMAGES, COSTS, OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS, OR LOSSES. EXCEPT FOR THE FOREGOING EXCLUDED CLAIMS, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SOW, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL NOT EXCEED TWO TIMES (2X) THE FEES PAID OR PAYABLE BY CLIENT UNDER THE APPLICABLE SOW DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
During the term of this Agreement and for two (2) years thereafter, TM shall maintain accurate books and records reasonably necessary to verify charges under, and TM’s compliance with, this Agreement and each SOW. Upon reasonable advance written notice, no more than once in any twelve (12)-month period unless required by law, regulator, or a reasonable belief of non-compliance, Client or its designated auditor may audit such books and records during normal business hours. If an audit identifies an overcharge of more than five percent (5%) for the audited period, TM shall promptly refund the overcharged amount and reimburse Client for the reasonable costs of the audit.
TM shall maintain, at its own expense, commercially reasonable insurance coverage consistent with industry standards for the Services, including commercial general liability and workers’ compensation insurance as required by applicable law. Upon Client’s request, TM shall provide certificates of insurance evidencing such coverage and shall use commercially reasonable efforts to provide Client advance notice of cancellation or material reduction in coverage. Where applicable and available under the relevant policy, TM shall name Client as an additional insured with respect to TM’s performance of the Services.
TM shall not subcontract, delegate, or otherwise transfer performance of any Services without Client’s prior written consent. TM shall remain fully responsible for the acts, omissions, performance, and payment obligations of all approved subcontractors and for ensuring that each approved subcontractor complies with the terms of this Agreement and the applicable SOW. TM shall not permit any subcontractor to assert any lien, encumbrance, or other claim against Client, Client’s property, or any Client materials.
TM represents, warrants, and agrees that it will comply with Client’s vendor code of conduct and other reasonable written vendor policies provided to TM by Client from time to time in connection with the Services. TM shall cause its personnel and approved subcontractors to comply with such requirements and shall promptly notify Client of any actual or suspected violation that may affect the Services, Deliverables, Client, or Client materials.
1. Governing Law; Dispute Resolution. The Parties agree that this Agreement will be construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. The Parties agree that the Uniform Computer Information Transactions Act, or any version thereof adopted by any jurisdiction, will not apply to this Agreement, any SOW, the Services, or the Deliverables. In the event of any dispute related to this Agreement, the Parties agree to submit to the exclusive jurisdiction of the federal or state courts located in the State of New York, New York County. EACH PARTY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY SOW, THE SERVICES, OR THE DELIVERABLES.
2. Entire Agreement. This Agreement is intended by the Parties as a complete and final expression of their agreement and understanding with respect to the subject matter hereof. This Agreement may not be changed or modified, except by an agreement in writing, signed by the Parties.
3. Notices. All notices to be given to either party hereunder shall be in writing and shall be deemed given when delivered via (i) certified mail, return receipt requested, all charges prepaid, (ii) Federal Express, UPS One-Day Service, or other similar overnight courier service, with proof of sending, or (iii) hand delivery, with acknowledgement of receipt, transmission, in each case to the other Party’s address set forth in the SOW.
4. Assignment. TM may not assign this Agreement or any SOW, in whole or in part, without Client’s prior written consent. Client may assign this Agreement or any SOW upon written notice to TM to any affiliate, successor, acquirer, merger partner, purchaser of any division or line of business, or other entity in connection with a merger, reorganization, initial public offering, change of control, or sale of all or substantially all of Client’s assets or equity. Any attempted assignment in violation of this Section will be void. This Agreement will inure to the benefit of and bind the Parties’ respective successors and permitted assigns.
5. Severability. If any term or provision of this Agreement is declared illegal, invalid or unenforceable, the Parties intend that the remainder of this Agreement shall not be affected and that, in lieu of any such stricken provision, there shall be added as a part hereof, a substitute provision similar in substance to the stricken provision.
6. No Partnership. Nothing contained in this Agreement shall be construed to constitute a partnership or joint venture or any other fiduciary relationship. Neither Party is the employee, agent, partner or joint venturer of the other, it being understood and agreed that the relationship of the Parties is that of independent contractors.
7. Defaults; No Waiver. No waiver by either Party of any default hereunder shall constitute a waiver by such Party of any subsequent default, whether such subsequent default is similar in nature to any previously waived default.
8. Force Majeure. Other than for payment obligations, neither Party’s delay or failure to perform or enforce any provision of this Agreement due to circumstances beyond its reasonable control (including, without limitation, war, strikes, floods, governmental restrictions, or power, telecommunications or Internet failures) shall be deemed to be, or to give rise to, a breach of this Agreement.