You are agreeing to the terms set forth by working with Elevation Firm:
GENERAL WORKING AGREEMENT – This document defines the terms and conditions of our working relationship. All projects or services that Elevation Firm (“Agency”) may be contracted to produce or provide for Client will be subject to the following:
APPOINTMENT – Client appoints Elevation Firm as Client’s exclusive advertising agency in connec- tion with the products and/or services of Client described in Schedule 1, attached hereto, for a term (“Term”) as hereinafter provided.
SCOPE OF ADVERTISING SERVICES – Agency will provide Client with the advertising services pro- vided in Schedule 2, attached hereto. Should Client request Agency to perform additional services beyond what is provided in Schedule 2, Agency and Client will negotiate in good faith with respect to the terms, conditions, and compensation for such additional services. Any agreement for additional services will be set forth in writing and considered an addendum to this Agreement. We will begin work upon CLIENT’S approval of the written estimate. Your approval (written or oral) will constitute an agreement between us.
OWNERSHIP – All campaigns, trademarks, service marks, slogans, artwork, written materials, draw- ings, photographs, graphic materials, film, music, transcriptions, or other materials that are subject to copyright, trademark, patent, or similar protection (collectively, the “Work Product”) produced by Agency are the property of the Client provided: (1) such Work Product is accepted in writing by the Client within twelve (12) months of being proposed by Agency; and (2) Client pays all fees and costs associated with creating and, where applicable, producing such Work Product. Work Product that does not meet the two foregoing conditions shall remain Agency’s property.
Notwithstanding the foregoing, it is understood that Agency may, on occasion, license materials from third parties for inclusion in Work Product. In such circumstances, ownership of such licensed materials remains with the licensor at the conclusion of the term of the license. In such instances, Client agrees that it remains bound by the terms of such licenses. Agency will keep Client informed of any such limitations.
TERM – The term of this Agreement shall commence on the date provided in Schedule 1 (“Com- mencement Date”) and shall continue until terminated by either party upon ninety (90) days’ prior written notice (“Notice Period”), provided that this Agreement may not be terminated effective pri- or to the expiration of twelve (12) months from the Commencement Date. Notice shall be deemed given on the day of mailing or, in case of notice by telegram, on the day it is deposited with the telegraph company for transmission. During the Notice Period, Agency’s rights, duties, and respon- sibilities shall continue.
Upon termination, Agency will transfer and/or assign to Client: (1) all Work Product in Agency’s pos- session or control belonging to Client, subject, however, to any rights of third parties; and (2) all con- tracts with third parties, including advertising media or others, upon being duly released by Client and any such third party from any further obligations. Client recognizes that Agency is a signatory to certain union agreements covering talent used in broadcast materials, which generally cannot be assigned except to signatories to such collective bargaining agreements governing the services rendered by such talent.
COMPENSATION AND BILLING PROCEDURE – Agency will be compensated and Client will be billed as provided in Budget, Timeline, and Process. A twenty five (25) percent deposit shall be in- curred unless written differently on quotation. Final project balance will be due at the conclusion of the project unless stated differently on the quotation. Agency will invoice Client for all media and third-party costs sufficiently in advance of the due date to permit payment by Client to Agency in order to take advantage of all available cash discounts or rebates. The cost of production materials and services shall be billed by Agency upon completion of the production job, or upon receipt of supplier invoice prior thereto. On all outside purchases other than for media, Agency will provide to the invoice proof of billed charges from suppliers upon request. All invoices shall be rendered on or about the first day of each month and will be payable the tenth day of the month. Invoices shall be submitted in an itemized format. Interest will be charged on overdue invoices at a rate of one and a half percent (1.5%) per annum, or the maximum permitted by law, whichever is less.
Client will pay either a monthly, quarterly, or yearly fee of in consideration of the advertising services performed by Agency. Such fee shall be deemed a nonrefundable advance against commissions to be received by Agency as follows:
(1) On all media purchased by Agency, Agency shall bill Client at the published card rates, or negoti- ated rates, as may be applicable. If no agency commission, or less than fifteen percent (15%) agency commission (the “Commission Rate”), is granted or allowed on any such purchases, Client agrees that Agency may invoice Client an amount which, after deduction of Agency’s cost, will yield Agency the aforesaid Commission Rate of such amount as Agency commission. During the Notice Period
following notice of termination, Agency will be entitled to commissions on all orders of advertising in print media whose published closing dates fall within the Notice Period and of broadcast media where the air dates fall within the Notice Period, regardless of who may place such orders.
(2) With respect to the engagement of talent, Agency shall bill Client the authorized engagement rate, plus any taxes, insurance, pension and health fund contributions, etc. applicable thereto, plus an amount which, after deduction of Agency’s cost, will yield Agency the Commission Rate on such amount as Agency commission.
(3) On broadcast production, artwork, engravings, type compositions, and any and all art and me- chanical expenses incurred by Agency pursuant to Client’s authorization, Agency shall invoice Client an amount which, after deduction of Agency’s cost, will yield Agency the Commission Rate on such amount as Agency commission.
(4) Advances against commissions will be reconciled against commissions actually received on a (monthly, quarter-annual, or other) basis. Agency will issue the appropriate credit or debit invoices.
CONFIDENTIALITY AND SAFEGUARD OF PROPERTY – Client and Agency respectively agree to keep in confidence, and not to 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 this Agreement or as may be required by law), any information, documents, or materials that are reasonably considered confidential regarding each other’s products, business, customers, clients, suppliers, or methods of operation; provided, however, that such obligation of confidentiality will not extend to anything in the public domain or that was in the possession of either party prior to disclosure. Agency and Cli- ent will take reasonable precautions to safeguard property of the other entrusted to it, but in the absence of negligence or willful disregard, neither Agency nor Client will be responsible for any loss or damage.
INDEMNITIES – Agency agrees to indemnify and hold Client harmless with respect to any claims or actions by third parties against Client based upon material prepared by Agency, involving any claim for libel, slander, piracy, plagiarism, invasion of privacy, or infringement of copyright, except where any such claim or action arises out of material supplied by Client to Agency.
Client agrees to indemnify and hold Agency harmless with respect to any claims or actions by third parties against Agency based upon materials furnished by Client or where material created by Agen- cy is substantially changed by Client. Information or data obtained by Agency from Client to substan- tiate claims made in advertising shall be deemed to be “materials furnished by Client.” Client further agrees to indemnify and hold Agency harmless with respect to any death or personal injury claims or actions arising from the use of Client’s products or services.
COMMITMENTS TO THIRD PARTIES – All purchases of media, production costs, and engagement of talent will be subject to Client’s prior approval. Client reserves the right to cancel any such autho- rization, whereupon Agency will take all appropriate steps to effect such cancellation, provided that Client will hold Agency harmless with respect to any costs incurred by Agency as a result.
If at any time Agency obtains a discount or rebate from any supplier in connection with Agency’s rendition of services to Client, Agency will credit Client or remit to Client such discount or rebate. For all media purchased by Agency on Client’s behalf, Client agrees that Agency shall be held solely liable for payments only to the extent proceeds have cleared from Client to Agency for such media purchase; otherwise, Client agrees to be solely liable to media (“Sequential Liability”). Agency will use its best efforts to obtain agreement by media to Sequential Liability.
AMENDMENTS – Any amendments to this Agreement must be in writing and signed by Agency and Client.
NOTICES – Any notice shall be deemed given on the day of mailing or, if notice is by telegram, e-mail, or fax, on the next day following the day notice is deposited with the telegraph company for trans- mission, or e-mailed or faxed.
PLACEMENT OF ADVERTISING – This Agreement shall be interpreted in accordance with the laws of the State of Texas without regard to its principles of conflicts of laws. Jurisdiction and venue shall be solely within the State of Texas.
INSPECTION OF BOOKS – Upon reasonable notice, any and all invoices from our vendors, time sheets and other documentation relating to your account will be available to you. Inspection at our studio by your authorized representative may be arranged during normal business hours.