Digital Marketing Services Agreement

This Digital Marketing Services Agreement (the “Agreement“), effective upon payment and the date of acceptance of this Agreement (hereinafter, the “Effective Date“), is entered into by and between Heitz Digital, LLC, with offices at 208 Market Street, Charlestown, MD 21914 (“Service Provider“) and the person or entity accepting this Agreement (“Customer“). Service Provider and Customer are each referred to herein as a “Party” and together, as the “Parties.” This Agreement sets forth the terms pursuant to which Service Provider will provide, and Customer will receive, the services and work product described herein. The Parties hereto agree as follows:

1. Services and Deliverables.

Service Provider agrees to provide to Customer those services selected by the Customer on Service Provider’s website, (incorporated herein by this reference) (the “Services“).

• For website services, new websites and/or website re-designs are limited to one (1) round of revisions after approval of the website during the “mock-up” stage. Revision count starts with the acceptance of the “mock-up” of the intended website. In the event Customer denies the mock-up in its entirety, two (2) additional mock-up attempts will be provided and Customer must accept the third (3^rd) and final mock-up. Customers will receive access to edit and modify their website as they see fit, however such access is limited to web files on Service Provider’s server that pertain to Customer’s website. Service Provider has no obligation to update material on Customer websites.
• Service Provider shall use commercially practicable efforts to ensure that the Services are rendered in a timely manner, subject to Customer Cooperation. Notwithstanding the foregoing, Service Provider shall not be liable for delays other than to the extent due to Service Provider’s gross negligence or willful misconduct. Without limitation on the foregoing, Service Provider shall not be liable for delays caused by Customer’s negligence, misconduct, or breach hereof, and all due dates shall be extended to accommodate Customer’s actions and/or reasonable requests for changes.

2. Customer Cooperation. Customer acknowledges that the successful and timely rendering of the Services and other services and the successful development of the Deliverables (as defined herein) by Service Provider will require the good faith cooperation of Customer. Accordingly, Customer will fully cooperate with Service Provider, including, without limitation, by: (a) providing Service Provider with all information and materials reasonably requested by Service Provider and necessary or appropriate for Service Provider to render the Services; (b) making available to Service Provider: (i) personnel of Customer; and (ii) to the extent necessary for Service Provider’s development of materials, a reasonable amount of time on Customer’s computer systems, provided that the foregoing shall be scheduled at such times so as to not disrupt the conduct of Customer’s business; (c) providing at least one employee or consultant with substantial relevant experience to act as a contact in connection with the Services; (d) providing timely review of Deliverables submitted by Service Provider; and (e) furnishing Service Provider with adequate substantiation of all descriptions and representations requested by Customer to be incorporated in the Deliverables.
3. Payment of Fees. As full and complete consideration for the Services and Deliverables, Customer shall pay to Service Provider the fees selected during online checkout. All fees are due prior to any work commencement or work completion on Customer’s behalf, whether it’s a subscription or one-time payment, payable in U.S. Dollars (the “Fee“). All fee types are non-refundable. For new websites or website re-designs, the one-time payment is charged for the design services and the subscription costs for websites starts immediately. Any delays caused by Customer’s lack of timely cooperation at any stage of the website process or any other services provided by Service Provider will not result in a pause or cessation of the monthly subscription costs, until such services are terminated.
4. Ownership Rights.

(a) Deliverables. Subject to Service Provider’s rights in and to the Service Provider Property (as defined below) and any designated third-party rights, and further subject to all of Customer’s payment obligations as set forth herein, Customer shall own all right, title, and interest in and to all information and materials created by or on behalf of Service Provider for Customer in connection with its rendition of Services hereunder (collectively the “Deliverables“) on a “work for hire” basis (as such term is commonly understood in U.S. copyright law). Notwithstanding the foregoing, any Deliverables prepared or proposed by Service Provider but rejected by Customer (the “Preliminary Materials“) shall remain the property of Service Provider. Subject to the terms hereof, Service Provider shall have the right to use such Preliminary Materials without limitation; provided, however, that, any such use shall not involve the release of any of Customer’s confidential information.

(b) Service Provider Property. Notwithstanding subsection (a) above, all creative content, computer code, methodologies, and other information and/or materials created by Service Provider prior to or outside the scope of this Agreement (the “Service Provider Property“) shall remain the sole and exclusive property of Service Provider, despite its incorporation in the Deliverables. Subject to all of Customer’s payment obligations as set forth herein, Service Provider hereby grants a fully paid-up, perpetual, worldwide, non-exclusive, non-transferable license to Customer to use the Service Provider Property, but only to the extent incorporated into the Deliverables and without any modification thereto. In no event shall Customer be entitled to use any of the Service Provider Property separately and apart from its incorporation in the Deliverables hereunder.

(c) Third Party Materials. Notwithstanding the foregoing, all materials, rights, and intellectual property owned by third parties (such as talent rights, photography, artwork, props and music) shall remain the sole and exclusive property of such third parties despite their incorporation in the Deliverables, and Customer agrees to use such third-party materials consistent with the restrictions for such third-party materials communicated to Customer. Subject to all of Customer’s payment obligations as set forth herein, Service Provider hereby grants a fully paid-up, perpetual, worldwide, non-exclusive, non-transferable license to Customer to use such incorporated third-party materials, but only to the extent incorporated into the Deliverables and without any modification thereto.

(d) Customer Provided Materials. Customer must have all requisite licenses to use and publish any and all content submitted to Service Provider by Customer or Customer’s representatives. The content includes but is not limited to images, photographs, text, graphics, links, logos, audio and video files, and any other work of art or creative. By submitting content to Service Provider, Customer represents that it owns all content or a license to use the content that is submitted for publication or use online. It is the Customer’s responsibility to ensure the validity of all content submitted to Service Provider. Service Provider has no obligation to verify or validate the content submitted by Customer.

5. Representations and Warranties.

(a) Each Party represents and warrants that: (i) it has the full corporate right, power and authority to enter into this Agreement, to grant the rights granted hereunder and to carry out the terms and conditions contained herein without violating any law; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate or conflict with any agreement to which such Party is a party or by which it is otherwise bound; and (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

(b) Service Provider further represents and warrants that, to the best of its knowledge, it holds all rights necessary to render the Services and deliver the Deliverables to Customer for Customer’s use as contemplated for hereby without such ownership and exploitation by Customer violating any third party right of any kind (including without limitation, any U.S. registered trademark, copyright, patent, trade name, publicity right, privacy right and/or other intellectual property right of any kind) and/or any applicable law, rule, or regulation.

(c) Customer further represents and warrants that the information and materials provided by it hereunder to Service Provider: (i) are complete, true, and accurate in every respect; (ii) do not violate any applicable law, rule, or regulation; and (iii) do not violate the third party rights of any person or entity in any way (including without limitation any trademark, copyright, patent, trade name, publicity right, privacy right and/or other intellectual property right of any kind).

6. Indemnity.

(a) Customer shall indemnify and hold harmless Service Provider from any Loss which may be incurred by Service Provider to the extent based upon or arising from any third-party Claim made or brought against Service Provider arising out of Customer’s material breach of this Agreement, breach of any applicable law (including without limitation a breach arising out of any content or information used or provided by Customer on its website, to Service Provider, or elsewhere), and/or Customer’s negligence or willful misconduct.

(b) Upon the assertion of any claim or the commencement of any suit or proceeding against the indemnified Party by a third party that may give rise to liability hereunder, the indemnified Party promptly shall notify the indemnifying Party of the existence of such claim, suit or proceeding and the indemnifying Party shall defend and/or settle the claim at the indemnifying Party’s own expense and with counsel of the indemnifying Party’s own selection. The indemnifying Party must obtain the indemnified Party’s prior written approval in connection with any settlement that could reasonably have an adverse effect on the indemnified Party’s business. Notwithstanding anything set forth herein to the contrary, the indemnified Party shall at all times have the right, following written notification to the indemnifying Party in connection therewith, to fully control the defense of any such claim, suit or proceeding in lieu of the indemnifying Party, in which case, the indemnifying Party shall be responsible for reimbursing the indemnified Party for all of the indemnified Party’s reasonable out-of-pocket expenses incurred in connection therewith within thirty (30) days following the date of the indemnified Party’s invoices in connection therewith.

7. Limitation on Liability. IN NO EVENT SHALL SERVICE PROVIDER BY LIABLE UNDER THIS AGREEMENT TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND/OR EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SERVICE PROVIDER’S AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THIS AGREEMENT WILL BE LIMITED TO AN AMOUNT EQUAL TO THE SUM OF MONEY PAID BY CUSTOMER TO SERVICE PROVIDER HEREUNDER. ANY CLAIMS MADE PURSUANT TO THIS SECTION MUST BE MADE WITHIN ONE (1) YEAR OF THE INCIDENT TO WHICH THEY RELATE OR FOREVER BE BARRED, TO THE EXTENT PERMITTED BY LAW.
8. Term and Termination.

(a) Term. Subject to subsection (b) below, the term of this Agreement shall commence as of the Effective Date and automatically renew until terminated. The term for each Service is dependent on the Service selected by Customer in the customer portal and may be on a monthly or annual basis. (the “Term“).

(b) Termination. This Agreement may be terminated by either Party, for any reason or no reason at all, upon the expiration of the existing pre-paid term. Customer may terminate through the customer portal. Additionally, this Agreement may be immediately terminated by either Party without further liability or obligation to the other Party if: (i) the other Party violates any applicable law, rule, regulation, or ordinance; (ii) the other party otherwise materially breaches any provision, warranty, or representation of this Agreement, and, if such breach or violation is curable, it remains un-remedied for a period of five (5) days following receipt of written notice detailing such breach or violation; or (iii) the other Party becomes insolvent, makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver for its business, or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency or protection of the rights of creditors.

(c) Following Termination. Upon termination, Service Provider shall be entitled to retain whatever amounts have heretofore been paid by Customer to Service Provider. Additionally, following termination of this Agreement, upon request, Service Provider shall transfer to Customer all Deliverables and other materials in Service Provider’s possession or control if paid for or owned by Customer. Upon request, Service Provider shall use all commercially reasonable efforts to assist Customer and any new Service Provider to effect an efficient transition of work in progress and other responsibilities for a reasonable fee and subject to Service Provider’s availability.

9. Confidentiality and Promotional Rights.

(a) Confidentiality. Each Party (the “Recipient“) shall take all commercially practicable steps to protect proprietary and confidential information and materials (hereinafter “Confidential Information“) provided by the other Party or its representatives (the “Discloser“) from improper disclosure. The term Confidential Information shall include the existence and terms of this Agreement. Confidential Information shall not include information previously known to Recipient or materials to which Recipient had access prior to the provision of such information or materials by Discloser; information or materials that are now or later become publicly known; information or materials provided to Recipient by a third party not bound by a duty of confidentiality to Discloser; information or materials independently developed by a Party without use of any Confidential Information of the other Party; or information or materials approved for release or disclosure by the Discloser without restriction. Recipient shall inform Discloser of all inquiries into, or requests for, Discloser’s Confidential Information by third parties and shall disclose Confidential Information to such third parties only when legally compelled to do so and after notice to Discloser, or when so permitted or instructed by Discloser. Additionally, each Party agrees that prior to providing Confidential Information to any employee or agent, such Party will: (1) confirm that such provision is required to fulfill its contractual obligations hereunder; and (2) require each such individual to first agree, in writing, to confidentiality terms not less stringent than those set forth herein with respect to the information.

(b) Promotional Rights. Notwithstanding anything set forth herein to the contrary, Customer agrees that Service Provider shall have the right, without prior approval, to use any and all non-confidential Deliverables following their publication to promote Service Provider and to market Service Provider’s services to third parties, including submitting such Deliverables to industry award shows and posting them on Service Provider’s website.

10. Non-Solicitation. Customer shall not solicit the services, either on a part-time or full-time basis, of any of Service Provider’s (or any of Service Provider’s affiliates’) employees, independent contractors, and/or consultants during the Term and for two (2) years thereafter. Customer acknowledges and agrees that Service Provider’s remedy at law for a breach of this Section shall be inadequate, and therefore, Service Provider shall be entitled to immediate injunctive relief for any such breach, without proof of irreparable injury and without having to post a bond, in addition to any other right or remedy it may have.
11. Independent Contractor. Service Provider understands and agrees that, as an independent contractor, Service Provider will not be treated as an employee of Customer. Accordingly, Customer will not withhold from any fees it pays to Service Provider any amount for taxes, including, without limitation, Income, Social Security, Medicare or any other taxes. Additionally, neither Party shall have any ability to bind the other Party to any agreements or other obligations and will not attempt to do so at any time.
12. General.

(a) Force Majeure. Excepting only Customer’s payment obligations, neither Party shall be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including without limitation, war, weather, strikes, lockouts, fires, acts of God, health-related pandemics, government shut-downs, or terrorism, or other events similar or dissimilar to any of the foregoing. Notwithstanding the foregoing, the affected Party shall promptly provide written notice thereof to the other Party, which notice shall include a detailed description of the event of force majeure along with the affected Party’s best estimate of the length of time such event will delay or prevent performance hereunder. Additionally, the affected Party shall use reasonable efforts to limit the impact of the event of force majeure on its performance hereunder.

(b) Governing Law. This Agreement shall be governed by the laws of Maryland without regard to its conflict of laws principles. The Parties hereby agree that any action arising out of this Agreement will be brought solely in any court located in Maryland. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. The Parties hereto acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Agreement. THE PARTIES HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM, OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.

(c) No Assignment. Customer may not assign or delegate this Agreement, in whole or in part, without the prior written consent of the Service Provider in each instance. Any assignment in violation of this clause shall be null and void ab initio. Notwithstanding the foregoing, Service Provider shall have the right to engage subcontractors to assist with its rendition of Services; provided, however, that Service Provider shall remain fully liable for the actions and inactions of any such parties.

(d) Severability. In the event that any term of this Agreement is deemed to be invalid, illegal, or otherwise unenforceable: (1) the Parties shall use all reasonable efforts to negotiate in good faith to amend the term to eliminate any such invalidity, illegality, or unenforceability to the extent practically possible, taking into full account their original intent when entering into this Agreement in the first instance; and (2) the remaining provisions hereof shall continue in full force and effect.

(e) Waiver. Waiver by either Party of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition or of any later breach of this Agreement.

(f) Entire Agreement. This Agreement represents the entire understanding between the Parties and supersedes all previous and contemporaneous verbal or written negotiations or agreements, if any, on the subject matter hereof. No modification of this Agreement shall be effective unless set forth in writing and signed by a duly authorized representative of each Party hereto.

(g) Survival. The rights, duties, obligations and liabilities of the Parties which are intended to survive shall survive the termination of this Agreement, including without limitation, the terms addressing confidentiality, publicity, payment obligations, ownership, representations and warranties, indemnifications, non-compete, limitations on liability, and insurance obligations.