AGENCY TERMS AND CONDITIONS

1. Scope of Services.

1.1. Agency will provide Client the services and deliverables (the “Services”) set forth in the Scope of Work document (“SOW”). Should Client request Agency to perform additional services beyond the scope of those identified in the attached SOW, such additional services shall be detailed in a separate SOW, or other writing executed by the Parties, which shall be subject to, and considered part of, these Terms and Conditions.

1.2. Client appoints Agency as its agent for all purchases of media, and, if applicable, production costs, engagement of talent, or other services and materials required to fulfill the SOW or produce the Work Product. Client reserves the right to cancel any such authorization, whereupon on receipt of written notice of such cancellation, Agency will take all appropriate steps to effect such cancellation, provided that Client will reimburse, and hold Agency harmless, for any costs incurred by Agency as a result.

2. Intellectual Property Ownership.

2.1. Subject to the limitations of this Section 2, all work or other materials that are subject to copyright, trademark, patent or other intellectual property protection that is developed or produced by Agency in fulfillment of the SOW (the “Work Product”) shall be the property of the Client provided Client has paid all fees and costs associated with creating or producing such Work Product. Subject to and upon fulfillment of the foregoing conditions, all title and interest to the Work Product shall vest in Client as “works made for hire” within the meaning of the United States copyright laws. To the extent that title to any such Work Product is not considered a work made for hire pursuant to law, Agency hereby transfers and assigns its rights in and to such Work Product to Client.

2.2. To the extent any pre-existing Agency property is contained in any of the Work Product (including, but not limited to, any works of authorship, inventions, know-how, and/or source identifying matter that is created, developed, or conceived by or on behalf of Agency), Agency, upon the satisfaction of the conditions in section 2.1, grants to Client a limited, royalty-free, non-exclusive, perpetual, non-assignable, worldwide license to use such Agency property solely in connection with Client’s use of the Work Product as contemplated by the SOW. Nothing contained herein shall be construed as granting or conferring any rights by license or otherwise in any of Agency’s trademarks, trade names, or any other proprietary or intellectual property of the Agency.

3. Client Materials.

3.1. Where Client has supplied to Agency any information, artwork, logos, images, copy or other written, graphic or pictorial materials (the “Client Content”) for Agency’s use in connection with the Services, Client hereby gives and grants to Agency a limited, non-exclusive license and right to utilize, display and reproduce such Client Content in the Work Product and/or in connection with the Services. Client covenants that it owns or has secured all necessary rights to the Client Content, and that such Client Content does not infringe any patent, copyright, trademark, trade secret or any other proprietary or intellectual property right of any third party, including individuals whose likeness appears in the Client Content.

3.2. All requested creative Client Content shall be delivered in accordance with Agency’s production schedule and specifications, including providing camera-ready, to-spec artwork.

3.3. Subject to Client’s express confidentiality requirements, Client grants to agency a limited, nonexclusive, non-sublicensable, royalty-free worldwide license to use and display representative samples of the Work Product and other related deliverables for Agency’s marketing and promotional purposes, including in case studies, Agency’s promotional portfolios, and submission in award competitions. Client further grants to Agency the right to use Client’s name on Agency’s website and social media accounts in connection with the promotional display of any such Client work. Client may revoke this grant of rights at any time by sending written notice to Agency.

4. Client Responsibilities.

4.1. Client will designate in writing the individual(s) with whom Agency will communicate regarding all aspects of the Services. Client is responsible for providing timely reviews and approvals of the deliverables and timely responses to Agency inquiries related to all aspects of the Services. ln the event of a delay by Client in granting any necessary authority or approval to Agency, which delay causes an increase in fees or costs associated with the Services, or a delay in the completion date of any deliverable, Client shall be solely responsible for such increased costs and delayed completion dates; and agrees to pay associated increase in fees and costs to Agency, including any dormancy or restart fees charged by Agency. Client will assume responsibility for any increased fees or costs for delayed work completion by third parties arising out of any delayed grant of necessary authority or approvals.

4.2. Client will ensure that all facts reasonably within Client’s knowledge that are stated in all Client Content provided to Agency, or in any deliverables incorporating such Client Content, are substantially true and not materially misleading. Client will have the exclusive responsibility to ensure that the materials created or developed by Agency conform to all requirements or restrictions imposed by law on Client’s business. Client agrees that Agency has no obligation to conduct such due diligence or provide any regulatory compliance services or legal review of any kind for any Client Content.

4.3. Client will be responsible for placing and testing all ad tracking codes on their website (e.g., GTM, Header/Footer Pixels, and the like) so as to enable Agency to track the performance of the digital media indicated in the SOW.

5. Compensation. Client will pay fees and costs to Agency as detailed in the SOW.

6. Payment Terms

6.1. Agency will generally send invoices on or about the 15th day of each month, and payment for the charges itemized in the invoices will be due upon Client’s receipt of same. Interest will be charged at the rate of 1.5% per month on all invoices that remain unpaid 30 days after receipt by Client. Certain vendors and/or media types may require prepayment.

6.2. For all media purchases or other services or materials purchased by Agency on Client’s behalf, Client agrees that Agency shall be held liable for payments to such media and/or third-party vendors only to the extent proceeds have cleared from Client to Agency for such expenses. Client otherwise agrees to be solely liable to the media or other relevant third party for any and all expenses incurred on behalf of Client.

6.3. Agency’s fees are based upon its prevailing hourly, flat, commission or retainer rates for services in effect on the date of the SOW. Agency’s prevailing rates for services are subject to adjustment on a periodic basis to reflect increases in its internal costs or market conditions.

6.4. Agency reserves the right to delay commencement or continuation of work on a Client engagement or project until Client has remitted the required payment to Agency.

6.5. In the event Agency must pursue legal action to collect or recover its fees or costs from Client, Client will bear all fees and expenses, including, without limitation, attorney’s fees, incurred by Agency in such recovery or collection action.

7. Term. Term is as specified in the SOW.

8. Termination.

8.1. Either Party may terminate the SOW for any reason on minimum of 90 days’ written notice to the other Party.

8.2. Either Party may terminate the SOW if the other Party fails to perform or otherwise materially breaches any of its obligations, covenants or representations, and fails to remedy such failure or breach within 30 days’ after the injured Party delivers notice to the breaching Party reasonably detailing the breach.

8.3. Agency’s rights, duties, and responsibilities shall continue up through the effective date of termination. Client shall be responsible for payment of all fees incurred in connection with the Services performed for or delivered to the Client, as well as all out-of-pocket costs, and expenses paid or advanced to third parties by Agency on behalf of the Client prior to the effective date of termination.

8.4. Upon termination of the SOW, Agency will, upon Client’s request, return, transfer and/or assign to Client: (1) all proprietary information or materials in Agency’s possession or control belonging to Client, subject, however, to any rights of third parties; and (2) any contracts with third parties, including advertising media, production partners, or others, upon being duly released by Client and any such third party from any further obligations. Client shall bear the costs associated with the transfer of Client’s property to Client.

9. Confidentiality and Safeguard of Party’s Property.

9.1. Client and Agency each agree to keep in confidence, and to not disclose or use for its own respective benefit, or for the benefit of any third party (except as may be required for the performance of services under the SOW or as may be required by law), any Confidential Information of the other party in its possession. Agency and Client will each take reasonable precautions to safeguard the Confidential Information of the other entrusted to it, and shall not disclose the Confidential Information of one another to any third party without the authorization of the disclosing party.

9.2. “Confidential Information” shall include, without limitation, marketing, technical, financial and business information and models, names of potential customers or partners, proposed business deals, reports, plans, market projections, software programs, data, or any other confidential and proprietary information relating to the work, and all of Agency’s proprietary information including original proposals, recommendations, concepts or ideation related to Client’s business. The term Confidential Information excludes any data or information that is already known by or in possession of the receiving party at the time it is disclosed to the receiving party, or that: (i) has become generally known to the public through no wrongful act of the receiving party; (ii) has been lawfully obtained by the receiving party from a third party without restriction on disclosure of it, and without a knowing or intentional breach of the receiving party’s obligations to the third party or the other party; (iii) has been approved for release by written authorization by the other party; (iv) has been disclosed pursuant to a requirement of a governmental agency or law without similar restrictions or other protections against public disclosure, or is required to be disclosed by operation of law; (v) is independently developed by the receiving party without use, directly or indirectly, of the Information received from the other party; or (vi) is furnished to a third party by the disclosing party hereunder without restrictions on the third party’s right to disclose the information.

9.3. All Confidential Information shall be kept confidential by the Parties following the termination or expiration of the SOW. Agency will not use any Confidential Information of Client for any purpose other than to perform its work and obligations to Client pursuant to the SOW.

10. Mutual Non-solicitation. During any term of this Agreement and for a period of 2 years after the completion of any work or services pursuant to it, neither Agency nor Client shall (i) contact, solicit, divert or take away the other’s employees, independent contractors, vendors or consultants, whose names or identities were known by any means during the Agreement term and arising out of the Services to which the Agreement relates, (ii) attempt to cause any of the other’s employees, independent contractors, vendors or consultants to refrain from working for or providing goods or services to the other; or (iii) assist any other person or persons in an attempt to do any of the foregoing. This Section 10 does not prevent either Party from issuing general solicitations or from hiring those personnel who respond to general advertisements or solicitations for employment that are not directed at the other Party’s personnel.

11. Notices. Any notice shall be deemed given on the day of receipt if notice is transmitted by postal mail or commercial courier, or upon the date of transmission if transmitted electronically. Any notice required shall be delivered:

to Agency: Catalyst Media Design, LLC
Attn: Liz Scott
9393 N. 90th St, Ste 102 PMB 134
Scottsdale, AZ 85258
Email: lscott@catalystmediadesign.com

12. Indemnification

12.1. Client agrees to indemnify and defend Agency for all damages and losses (including reasonable attorney’s fees, costs and expenses) with respect to any claims or actions by third parties against Agency, including those by governmental or regulatory authorities, arising out of Client’s breach of these Terms and Conditions, including, without limitation, any claim for false or misleading advertising, libel, slander, piracy, plagiarism, invasion of privacy, or infringement of intellectual property based upon (i) materials furnished by Client or (ii) materials created by Agency that are substantially modified by Client. Client Content and any other information or data obtained by Agency from Client to substantiate claims made in advertising shall be deemed to be “materials furnished by Client.”

12.2. Agency agrees to indemnify and defend Client for all damages and losses (including reasonable attorney’s fees, costs and expenses) with respect to any claims or actions by third parties against Client for all claims of piracy, plagiarism, or infringement of intellectual property based upon materials created by Agency that are contained in the Work Product, other than materials furnished or substantially modified by Client.

12.3. Any party entitled to be indemnified pursuant to these Terms and Conditions (“Indemnified Party”) shall provide prompt written notice to the party liable for such indemnification (“Indemnifying Party”) of any claim or demand that the Indemnified Party has determined has given or could give rise to a right of indemnification under these Terms and Conditions. The Indemnifying Party shall promptly undertake to discharge its obligations hereunder. Additionally, the Indemnifying Party shall employ counsel reasonably acceptable to the Indemnified Party to defend any such claim or demand. The Indemnified Party shall have the right to participate in the defense of any such claim or demand, at its own expense, and may settle or compromise such claim or demand, without prejudice to its rights hereunder. The Indemnified Party shall cooperate with the Indemnifying Party in any such defense.

13. Limitation of Liability. In the event of any claim, demand, alleged loss, or alleged damage arising out of Work Product provided by Agency to Client, Agency’s total liability to the Client shall not exceed the amount of fees or other compensation paid to Agency pursuant to the SOW. Pass through expenses such as postage and media costs shall not be considered to be fees or compensation. UNDER NO CIRCUMSTANCES SHALL AGENCY BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OR CORRUPTION OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), LAW, EQUITY OR OTHERWISE.

14. Disclaimer of Warranty. Agency warrants that it will perform the Services in accordance with industry standards and using reasonable care and skill. THE SERVICES ARE PROVIDED AS-IS. THESE WARRANTIES ARE CLIENT’S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITH RESPECT TO MARKETING SERVICES, AGENCY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF EFFECTIVENESS, SPECIFIC BUSINESS RESULTS, OR SPECIFIC QUALITY OR QUANTITY OF RETURN OR RESPONSE.

15. ADA Compliance. Client acknowledges and understands that, unless otherwise provided for in SOW, Agency’s scope of work does not include ensuring compliance with the Americans with Disabilities Act (“ADA”) website accessibility requirements.

16. Data Privacy Regulation Compliance. Where Agency’s scope of work includes the use of Client data or information, or consumer information assembled or processed by Client, Client acknowledges and understands that, unless otherwise provided for in SOW, Agency’s scope of work does not include ensuring compliance with U.S. federal or international data privacy regulations. Client shall be responsible for providing any and all specifications concerning use of any consumer data provided to Agency by Client. Without limiting any indemnification obligation of Client, Client further agrees it will indemnify and hold Agency harmless from Client’s negligence or intentional failure to comply with relevant privacy or data security laws and regulations, rules, or industry codes and guidelines, including the CCPA or GDPR, relevant to any Data in possession or control of Agency related to SOW between the parties.

17. Right to Engage in Other Activities. Client acknowledges and agrees that Agency may provide services of the same or a similar nature as the Services for one or more third parties during and after the term of the SOW and that, except as expressly agreed to by the Parties in writing, nothing in the SOW will operate to impair, restrict, limit, or prohibit Agency from providing any such services.

18. No Assignment. Client may not assign its benefits or delegate its duties under these Terms and Conditions without the prior consent of Agency. Any attempted assignment or delegation without such prior consent will be void. For purposes of these Terms and Conditions, an assignment includes Client’s sale to a purchaser of all the assets or equity of Client.

19. SOW: Modifications. The SOW and these Terms and Conditions therein constitute the sole Agreement of the Parties hereto and supersedes all prior agreements, promises, negotiations, or representations between the Parties not expressly stated herein. All subsequent modifications shall be in writing and signed by the Parties.

20. No Joint Venture. Nothing contained in the SOW will be deemed or construed as creating a joint venture or partnership between the Parties. Agency is, and at all times will continue to be, an independent contractor.

21. Severability. The invalidity or unenforceability of any provision of the SOW will not affect the validity or enforceability of any other provision hereof, each of which will remain in full force and effect, so long as the economic or legal substance of the transactions contemplated hereby is not affected in a manner materially adverse to any Party. Further, it is the intention of the Parties that, if any court construes any provision or clause of these Terms and Conditions, or any portion thereof, to be illegal, void, or unenforceable because of the duration of such provision, such court shall reduce the duration, and, in its reduced form, such provision shall then be enforceable and shall be enforced.

22. Force Majeure. Agency shall not be deemed in default of the SOW to the extent that its performance is prevented or delayed due to causes beyond its reasonable control, including, but not limited to, natural disaster, act of God, labor controversy, civil disturbance or act of terror, disruption of the public markets, war or armed conflict, pandemic, or the inability to obtain sufficient materials or services required in the conduct of its business, including Internet access, or any change in or the adoption of any law, judgment or decree.

23. Governing Law; Dispute Resolution. The SOW and these Terms and Conditions shall be governed by and interpreted in accordance with the laws of the state of Arizona without regard to its conflict of laws principles. Jurisdiction and venue for resolution of all disputes arising out of these Agreements shall be in Maricopa County, Arizona.