Confidential T10 ver. 07.01.2022
1. Scope. These Terms & Conditions (or Terms) are incorporated into the Advertising Agency Agreement, order form, or similarly named contract (Agreement) between Client (also you or your) and Tier 10 Marketing, LLC, dba Tier10 (Tier10; also we, us or our) and govern your use of the products and services we provide you (Services), which are set forth in one or more Scopes of Work (or SOWs) and incorporated into the Agreement. Any special requirements, modifications or amendments mutually agreed to and not otherwise addressed in the Agreement, these Terms or an SOW may be set forth in an addendum, which shall be incorporated into the Agreement and subject to these Terms. Any terms not defined in these Terms are as defined in the Agreement.
2. License and Appointment. We grant you a non-exclusive, non-transferable, non-sublicensable, revocable license during the Service Term to use the Services you order, subject to your complying with these Terms and all applicable laws and regulations (Law). Use of any of our Services constitutes acceptance of these Terms. You agree not to allow unauthorized third parties to access or use any of our Services. You appoint us as your advertising agency of record during the Service Term to manage your marketing and advertising programs, develop an advertising strategy and budgets, and manage third party advertisers (Advertisers) in accordance with your objectives and requirements.
3. Service Ordering and Pricing. Our Services, such as Media, Creative Design, Digital Marketing, Account Management, Production and Fulfillment, as well as pricing, are described in the initial SOW. Any additional Services you order will be set forth in a new or modified SOW and incorporated into the Agreement. Certain Services may be provisioned/fulfilled by our affiliates (Affiliates). Changes to specific Services, including cancellation, may require advance notice. We may update our Services as we deem necessary or desirable to enhance the quality, performance or to comply with Law. Pursuant to a specific SOW, you may order a customized advertising campaign for your exclusive use. Any such work product shall be clearly identified as Custom Work, shall be your exclusive property, and shall not be used by us for any other client.
4. Fees and Payments. We shall provide you with a monthly invoice electronically consolidating all advertising spend managed by us. You are responsible for paying Advertisers (e.g., Google, Bing, Facebook) directly, unless the invoice indicates that you shall reimburse us for making such payments on your behalf; we require a credit card to make these payments on your behalf. Fees for web hosting/maintenance and other Services provided directly by us are set forth in the SOW and billed monthly. You will also pay us a monthly fee equal to a percentage of your marketing and advertising spend, as set forth in the SOW (Agency Commission). Reimbursable expenses are set forth in the SOW. All payments are due within 15 days of receipt of invoice, without setoff, deduction, or delay. Late payments will accrue interest at the lesser of 1% per month or the maximum legally permitted rate. Your credit card will be charged for any payments 30 days past due. A processing fee applies to all credit card payments. Your payment obligations are not contingent on your receipt of any third party incentives or other funds. During the Service Term, we may increase fees upon prior notice if our costs (e.g., postal rates; third party provider charges) increase. Unless otherwise required by an OEM certified program, we may increase fees annually by up to 3%, effective on the 1st of each calendar year. We may suspend any or all of aspects of the Services, upon notice, if you fail to pay all undisputed amounts owed when due; any billing disputes not submitted to us within 30 days of receipt of invoice will be waived. You are responsible for any collection costs, including reasonable attorneys’ fees.
5. Intellectual Property. Each party retains all rights, title and interest in and to its intellectual property (IP). IP means a party’s patents, trademarks, logos, copyrights, trade secrets, and any other intellectual property. You retain copyright and all other rights you hold in content you submit to us for use in the Services. If you provide us with any content or other IP to use in connection with the Services, you grant us a non-exclusive, revocable, non-transferable, non-sublicensable, royalty-free license during the Service Term to use such content and IP in connection with providing the Services. If we host your primary website, you have the right to your domain name URL, even if we order it on your behalf. We and/or our licensors expressly retain all rights, title, and interest to our Services, including all features and technology, and any improvements, updates, modifications or additions. Third parties who provide images for use in our Services hold the copyrights thereto. Any IP produced, conceived, or otherwise developed by or for us in connection with our Services shall be our exclusive property, with the exception of Custom Work, which shall belong to you. You may not decompile, disassemble, reverse engineer or otherwise attempt to reconstruct or create derivative products from our Services; nor may you remove any trademark or copyright symbols. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable, license to use our approved IP, only as incorporated into the Services, during the Service Term and in connection with using the Services. You grant us the right to issue press releases announcing the Agreement and use your name and logo for marketing and promotional purposes.
6. Confidentiality. Confidential Information means all written or oral information disclosed by one party (Discloser) to the other (Recipient) identified as confidential, any information that derives from or reveals any Confidential Information, and any information that, based on its nature and the circumstances surroundings its disclosure, a reasonable person would consider confidential or proprietary, including information disclosed by a party prior to the effective date of the Agreement. Confidential Information does not include information that: (a) was already in Recipient’s possession when first disclosed by Discloser; (b) was in the public domain when disclosed to Recipient or enters the public domain through no fault of Recipient; (c) is made available by Discloser to a third party on an unrestricted, non-confidential basis; (d) was lawfully obtained by Recipient from a third party not under confidentiality obligations to Discloser; (e) was independently developed by Recipient by persons without access to or use of Discloser’s Confidential Information or IP; or (f) is required to be disclosed under Law, provided, to the extent legally permissible, Recipient notifies Discloser prior to such disclosure to enable Discloser to seek confidential treatment. With respect to each other’s Confidential Information, both parties shall: (i) maintain its confidentiality in accordance with industry standards; (ii) use it solely in connection with the Agreement; (iii) limit access to those who require it to perform their obligations under the Agreement; and (iv) require that anyone with access be subject to confidentiality requirements no less restrictive than those contained here.
8. Term and Termination. The term (Service Term) shall be 12 months from the date Services commence, unless a different Service Term is stated in the Agreement. The Service Term will automatically renew for successive one year Service Terms, unless either party notifies the other of non-renewal at least 30 days prior to the end of the then current term. For any Service Terms that are month-to-month, a cancellation notice received during a given month shall result in termination of Services at the end of the following month. Either party may terminate the Agreement: (a) for a breach by the other party not cured within 30 days of notice by the non-breaching party; or (b) immediately upon notice if the other party: (i) voluntarily commences or has instituted against it, and not dismissed within 60 days, bankruptcy or similar proceedings; (ii) makes an assignment of all or substantially all of its assets for the benefit of its creditors; (iii) generally fails to pay its debts when due; or (iv) dissolves or ceases to do business. We may terminate the Agreement upon 10 days’ written notice if you fail to pay all amounts owed when due under any agreement with us, other than those subject to a good faith business dispute. Upon termination or expiration of the Agreement: (w) all licenses granted hereunder shall terminate; (x) your right to access our Services shall cease; (y) we shall cease to be your advertising agent of record and using Client Data in our possession; and (z) each party shall cease using and return or destroy all of the other party’s IP and Confidential Information in its possession.
9. Representations and Warranties. Mutual. Each party represents and warrants that: (a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation; (b) the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party, enforceable in accordance with its terms; (c) the performance of its obligations under the Agreement will not knowingly violate any other agreement between such party and any third party; (d) it has obtained and will maintain all consents, approvals, licenses or other authorizations necessary to perform its obligations under the Agreement; and (e) the execution and performance of the Agreement will not conflict with or violate any applicable Law, which may include, as applicable, the GLBA, FTC Safeguards Rule, CAN-SPAM Act, TCPA, federal and state Do Not Call registries, federal and state privacy laws, including the CCPA, and the ADA. By Tier10. We represent and warrant that we will provide the Services in a professional manner in accordance with industry standards. By Client. Some of the Services may be provided by third parties and/or subject to the policies and terms of social media platforms, search engines, websites or network publishers on which your advertisements are posted or displayed in connection with our Services, or third party tools integrated into the Services, and you represent and warrant to comply with any such applicable policies and terms. If you provide us with any content or other IP to use in connection with the Services, you represent and warrant that such use is authorized, will not constitute false advertising, and will not misappropriate, infringe or otherwise violate any third party rights.
11. Limitation of Liability. Neither party shall be liable for any indirect, incidental, special, consequential, punitive and/or exemplary damages of any kind arising out of or relating to the Agreement, including, but not limited to, lost profits or revenue, business interruption, or loss of business information, even if such party has been advised of the possibility of such damages. Our total liability under the Agreement shall not exceed the fees we receive during the 12 months prior to the event giving rise to the liability and your total liability shall not exceed the total amounts contracted for under the Agreement. The foregoing limitations shall not apply to confidentiality breaches or third party indemnification claims, nor shall they relieve you of your obligation to pay the Service fees owed.
12. Indemnification. Mutual. Each party (an Indemnifier) agrees to indemnify and defend the other party and its subsidiaries, affiliates and assigns, and its and their officers, directors, members, employees and agents (the Indemnifieds) from and against any and all losses, liabilities, damages, or costs (including reasonable attorneys’ fees) (Losses) incurred by the Indemnifieds resulting from a third party action, suit or proceeding (Claim) resulting from the Indemnifier’s: (a) gross negligence or willful misconduct; or (b) a material breach of any of its representations, warranties, and obligations hereunder. You further agree to indemnify and defend us from any Losses we incur resulting from a third party Claim that any content or IP you provide us for use in the Services infringes a U.S. intellectual property right and we further agree to indemnify and defend you from any Losses you incur resulting from a third party Claim that our Services infringe a U.S. intellectual property right. In the event of an infringement Claim with respect to our Services, or, in our opinion, is likely to occur, we may, in our sole discretion: (i) procure the right for you to continue using the infringing service; (ii) repair or modify the Service to make it non-infringing; or (iii) cancel the infringing Service. If no such options are available on commercially reasonable terms, we may terminate the Agreement and refund any fees prepaid by you for Services not yet rendered. This indemnification obligation shall not apply if the alleged infringement arises, in whole or in part, from the: (x) unauthorized modification of our Services by a party other than us; (y) combination, operation or use of our Services with software, hardware or technology not provided or approved by us; or (z) unauthorized use of our Services. This Section states our entire obligation and liability with respect to any infringement Claim under the Agreement. Procedures. The Indemnifieds shall promptly inform the Indemnifier of any Claim for which they may be entitled to indemnification. The Indemnifier may direct the defense and settlement of any such Claim, with counsel of its choosing. The Indemnifieds will provide the Indemnifier, at Indemnifier’s expense, with information and assistance reasonably necessary to defend and settle the Claim. The Indemnifieds shall have the right, but not obligation, at their own expense, to participate in, but not control, the defense of any Claim. The Indemnifier will not settle any Claim without the written consent of the Indemnifieds, not to be unreasonably withheld, conditioned or delayed.
13. Non-Solicitation. During the Service Term and for 12 months following its termination, neither party, without the other party’s prior written consent, shall, directly or indirectly, for itself or any third party: (a) solicit or encourage any of the other party’s employees to leave their employment; (b) employ or contract with any of the other party’s employees; or (c) employ or contract with any person who was employed by the other party during the prior 12-month period. This does not prohibit hiring responders to general employment ads.
14. Governing Law; Venue. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without reference to its conflict of laws principles. Each party consents to the exclusive jurisdiction of the state and federal courts for Fairfax County, Virginia, provided that either party may seek injunctive relief from any court of competent jurisdiction. Even if the parties mutually agree to an alternative venue in the Agreement, we may, to recover unpaid fees, file an action in the federal or state courts for Fairfax County, Virginia and you hereby submit to such jurisdiction with respect to such action. The prevailing party shall be entitled to reasonable attorney fees and costs. The parties waive any rights to trial-by-jury.
15. Modifications. We may modify these Terms by posting the revised version online at least 10 days prior to the end of the then current month, effective the 1st of the following month, and will include advance notice of any material changes in your invoice or by email. Within this 10-day period, you may notify us in writing if you wish to terminate the Agreement. We may then choose to: (a) accept the notice of termination; (b) re-modify the Terms; or (c) withdraw the modifications with respect to you. Absent such notice by you, you will be deemed to have accepted the changes.
16. General. The Agreement: (a) constitutes the entire agreement between us and supersedes all prior agreements with respect to its subject matter; (b) will be binding upon and inure to the benefit of the parties, their successors and permitted assigns; (c) creates no agency, partnership or employer-employee relationship between the parties; the relationship is that of independent contractors; and (d) has no third party beneficiaries (other than the Indemnifieds with respect only to the Indemnification section). If any provision in the Agreement is deemed invalid, illegal, or otherwise unenforceable, such provision shall be enforced, as nearly as possible, in accordance with the parties’ intent; the remainder shall remain in full force and effect. No failure or delay by a party in enforcing the Agreement shall be construed as a waiver of any of its rights under it. No party shall be deemed in default of the Agreement if the performance of its obligations is delayed or prevented by events beyond its reasonable control, excluding payment obligations. Notices may be delivered electronically, by mail or in person, and shall be deemed served when delivered to the address specified in the Agreement; each party shall promptly inform the other of any changes to their contact information. The Agreement, including any addendums, may be executed electronically or digitally, and/or in counterparts, which together will constitute the whole Agreement. Neither party may assign the Agreement without the prior written consent of the other party, not to be unreasonably withheld, conditioned, or delayed, provided that either party may assign the Agreement upon notice to: (i) a financially solvent affiliate; or (ii) a successor-in-interest, as a result of a merger or consolidation or in connection with the sale of all or substantially all of its assets. An asset sale shall not relieve you of your obligations to pay all amounts outstanding at time of sale; furthermore, unless the acquirer assumes the Agreement in connection with the sale, you shall remain liable for any fixed fees owed through the remainder of the current Service Term. The provisions of the Agreement that, by their nature, should survive termination of the Agreement, shall survive.