Consulting Services Agreement
This Consulting Services Agreement, along with any amendments and attachments hereto, together with the terms of any order forms entered into between You and Consultant (each as defined below) (collectively, the “Agreement”) shall constitute a binding agreement between Project Applecart LLC, a Delaware limited liability company with an address of 228 Park Avenue South, PMB 78776, New York, NY 10003 (“Consultant”), and the person or entity identified in one or more mutually-executed Order Forms that reference this Agreement (“you” or “Client”).
BY ACCEPTING THIS AGREEMENT OR BY ENTERING INTO AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND ACCEPTED THE TERMS AND CONDITIONS SET FORTH HEREIN. YOU REPRESENT AND WARRANT TO CONSULTANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU FURTHER REPRESENT AND WARRANT THAT YOU ARE AN EMPLOYEE OR AGENT OF SUCH ENTITY AND HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT, YOU MUST NOT ENTER INTO ANY SUCH ORDER FORM THAT REFERENCES THIS AGREEMENT, AND YOU MUST NOT USE THE SERVICES OR THE DELIVERABLES (AS DEFINED IN SECTION 1(A) BELOW).
WHEREAS, the parties desire to enter into an agreement for the furnishing of those services set forth in one or more mutually-executed Order Forms that reference this Agreement (each an “Order Form”), and such other services as the parties may agree in writing from time to time.
NOW THEREFORE, in consideration of the premises, and other good consideration, the parties agree as follows:
1. SERVICES
A. Consultant shall provide the services to Client set forth in each Order Form, and such other services as may be further described in additional Order Forms that may be executed by the parties from time-to-time (collectively, the “Services”). “Deliverable” means any work product specified in an Order Form. All Order Forms shall be governed by this Agreement.
2. PERIOD OF PERFORMANCE AND SCHEDULE; ADVERTISING CAMPAIGNS
A. The term of this Agreement will commence on the Effective Date and continue until terminated as permitted by this Agreement (“Term”). Each Order Form will commence on the Service Effective Date specified in such Order Form and continue until the Service End Date specified in such Order Form, unless earlier terminated as set forth in this Agreement or such Order Form.
B. Consultant shall provide the Services in accordance with an applicable Order Form. Client shall be responsible for ensuring that each of Client’s activities contemplated by an Order Form, including its use and its service providers’ use of the Deliverables, are conducted in strict compliance with all applicable laws and regulations, and Client shall remain liable for its service providers’ use of the Deliverables to the same nature and extent that Client is liable for its own use of the Deliverables hereunder. For Services involving distribution of Deliverables to a third-party advertising platform(s), destination(s), or network(s) (each, an “Advertising Destination”), prior to Consultant's delivery of any Deliverables to an Advertising Destination, Client (or its third-party service provider or agency, as applicable) shall accept all terms required by the Advertising Destination for use of its advertising services (the “Advertising Destination Requirement”). Client acknowledges that Consultant has no responsibility or liability to Client for the use of any Deliverable by an Advertising Destination.
C. Advertising efforts are dynamic undertakings that involve many influences and factors, of which Consultant's services are merely one. Client acknowledges that Consultant makes no representations or warranties concerning the impact of the Services identified in any Order Form. Any estimates or projections provided by Consultant are solely illustrative and shall not be construed to be a guarantee by Consultant.
D. If Consultant is performing Services that involve advertising or the dissemination of messages on behalf of Client (“Advertising Services”), the terms of the Advertising Services Addendum located at www.applecart.co/advertising will also apply to such Advertising Services, and the Advertising Services Addendum is hereby incorporated by reference into this Agreement.
E. If Consultant is performing Services or providing Deliverables that implicate the application of, or require compliance with, US federal and/or state securities laws (collectively, “Securities Services/Deliverables”), the terms of the Securities Addendum located at www.applecart.co/securities will also apply to such Securities Services/Deliverables, and the Securities Addendum is hereby incorporated by reference into this Agreement.
F. If Consultant is performing Services or providing Deliverables that reference a candidate for public office, reference a government official, and/or implicate U.S. federal, state and/or local laws governing political activities, including, without limitation, election laws, campaign finance laws, “pay-to-play” laws, or lobbying disclosure laws (collectively, “Political Services/Deliverables”), the terms of the Political Services/Deliverables Addendum located at www.applecart.co/political will also apply to such Political Services/Deliverables, and the Political Services/Deliverables Addendum is hereby incorporated by reference into this Agreement.
G. If Consultant is performing Services that include the creation of advertising creative or related materials or content intended to be disseminated by, or on behalf of, Client as part of an advertising campaign (collectively, “Creative Services”), the terms of the Creative Services Addendum located at www.applecart.co/creative will also apply to such Creative Services, and the Creative Services Addendum is hereby incorporated by reference into this Agreement.
H. If Consultant is performing Services that that involve client's use of the Data Onboarding Tool (as that term is defined in the Data Onboarding Addendum), the terms of the Data Onboarding Addendum located at www.applecart.co/onboarding will also apply to such Services, and the Data Onboarding Addendum is hereby incorporated by reference into this Agreement.
3. PRICE AND PAYMENT
A. In consideration for the Services to be provided by Consultant, Client shall make payments to Consultant in accordance with the schedule of payments set forth in each applicable Order Form. Consultant’s obligation to perform Services is contingent on Client’s full payment of amounts due under this Agreement, including full payments of installments specified in each applicable Order Form.
B. Client shall be solely responsible for all sales, use or other similar taxes levied by any governmental authority with respect to amounts payable to Consultant under this Agreement, except for any taxes based upon Consultant’s net income or unless Client provides in writing documentation of an applicable exemption.
C. The parties agree that Consultant is, and throughout this Agreement shall be, an independent contractor. Nothing contained in this Agreement shall create or imply a partnership, joint venture, agency, or employment relationship between Client and Consultant. Consultant shall not be entitled to, nor receive, any benefit normally provided to Client’s employees such as, but not limited to, vacation payment, retirement, health care or sick pay. Client shall not be responsible for withholding income or other taxes from the payments made to Consultant. Consultant acknowledges that it will receive a Form 1099 from Client after the end of the calendar year. As an independent contractor, Consultant will be free to decide the means by which Consultant will provide the required services. To the extent that Consultant requires assistance in providing the services, Consultant shall be responsible for hiring the necessary individuals or firms.
4. CONFIDENTIALITY OF INFORMATION
A. Consultant and Client shall each hold in trust for the sole benefit of the other party all materials or information of a confidential, proprietary, or competitively sensitive nature, whether marked or unmarked, relating to the disclosing party or its Affiliates (as defined in Section 14 below), or that a reasonable business person would consider confidential, that are provided to or otherwise made available to it by the other party, or otherwise obtained or learned by it in connection with the Services, whether before or after the date hereof (“Proprietary Information”). Neither Consultant nor Client shall use, reproduce or disclose any Proprietary Information except to the extent necessary to perform its obligations under this Agreement or as authorized by the other party. In any event, except as authorized by the other party, neither Consultant nor Client shall disclose any Proprietary Information to any person other than individuals within Client or Consultant respectively or to service providers who have a need to know such Proprietary Information. “Proprietary Information” includes materials and information of or about Consultant or Client, and their respective clients, vendors, licensors and other persons, that are not generally known to the public, including, without limitation, materials and information relating to Consultant’s or Client’s business, plans, operations, products, services, methods, procedures, clients, equipment and systems, whether in written, oral or any other form. Except as expressly provided in this Agreement, Consultant’s Proprietary Information includes Consultant Technology (as defined in Section 5(A) below), and all modifications, enhancements, and derivatives thereof.
B. Each party shall use best efforts to prevent the unauthorized disclosure, reproduction, or use of the other party’s Proprietary Information, which efforts shall be no less than those such party uses to protect its own Proprietary Information. The obligations set forth above, shall not apply to any information which (i) was known to the receiving party prior to being disclosed by the disclosing party, (ii) is or becomes publicly known through no wrongful act of the receiving party, (iii) is approved for release by written authorization of the disclosing party, or (iv) is rightfully received from a third party who provided such information without breach of any separate confidentiality obligation, or (v) is independently developed without reference to the disclosing party's Proprietary Information. Each party may disclose Proprietary Information to the extent required by subpoena, other court order or as otherwise required by law, provided that the party required to make such disclosure, to the extent permitted by law, notifies the other party promptly upon learning of such requirement and has given that party a reasonable opportunity (and cooperated with the party) to contest or limit the scope of such required disclosure.
C. Each party acknowledges and agrees that the unauthorized disclosure or use of the other party's Proprietary Information will cause irreparable harm and significant injury which will be difficult to ascertain and incapable of adequately compensating solely in terms of monetary damages. Accordingly, each party agrees that the injured party shall have the right to seek injunctive relief enjoining any breach or threatened breach of the receiving party's obligations in connection with Proprietary Information.
D. Notwithstanding anything in this Agreement to the contrary, Consultant may compile statistics relating to the Services that do not identify Client (collectively, “Aggregated Data”). Consultant owns all rights, title, and interest in and to Aggregated Data, and may use and disclose Aggregated Data for Consultant’s business purposes, such as improving or marketing its products and services. Client agrees that Consultant may include it as part of its general and publicly available customer list.
E. The Deliverables or other information received by Client or by Client’s service provider, as applicable, may include information relating to individuals (“Personal Data”) which individuals have certain rights under applicable law in connection with Personal Data (such rights, individually and collectively, “Personal Data Rights”). Personal Data Rights may include, without limitation, the right (a) to receive a copy of Personal Data in Client’s possession or control, (b) to receive information about the use and disclosure of Personal Data, and/or (c) to require that certain actions be taken with respect to Personal Data, including deleting Personal Data and prohibiting certain uses or disclosures of Personal Data. In the event that Client or Client’s service provider receives a Personal Data Rights request from an individual, Client shall immediately notify Consultant (email sufficing) upon becoming aware of such request. Client shall, at its own expense, assist Consultant in fulfilling any Personal Data Rights requests with respect to Personal Data in the possession or control of Client.
F. Client acknowledges and agrees that, to the extent that Client provides Consultant with any Personal Data and/or to the extent that Consultant obtains, collects, or creates Personal Data at Client’s direction and solely for the purposes of providing the Services to Client hereunder, Consultant is acting as Client’s service provider with respect to all such Personal Data. For the purposes of clarity and avoidance of doubt, Consultant does not act as Client’s service provider when, in the normal course of Consultant’s business, Consultant collects and processes information for the purposes of generating and maintaining Consultant’s proprietary social graph.
G. To the extent that Client provides Consultant with any Personal Data hereunder and/or to the extent that Consultant obtains, collects, or creates Personal Data at Client’s direction and solely for the purposes of providing the Services to Client hereunder, Consultant shall not (i) sell, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate orally, in writing, or by electronic means, any such Personal Data to any third-party for monetary or other valuable consideration, (ii) retain, disclose, or use any such Personal Data for any purpose (including any commercial purpose) other than the specific purpose of performing the Services as specified in this Agreement and in any applicable Order Form(s), and/or (iii) retain, use, or disclose any such Personal Data outside of the direct business relationship between Consultant and Client. Consultant hereby certifies that it understands the restrictions described in the previous sentence, and shall comply with them.
5. OWNERSHIP OF WORK PRODUCT
A. “Consultant Technology” means all Consultant Proprietary Information, including Consultant’s social graph and related technologies and data and certain other information, inventions, methodologies, designs, works of authorship, data, software, algorithms, models, databases, lists, trademarks, trade secrets or other material or technology used in connection with the Services that are owned by and proprietary to Consultant or its licensors and data sources. Consultant Technology includes all new Consultant Technology and all modifications, enhancements, and derivatives thereof created or developed, whether alone or with others, during the Term of this Agreement, whether or not in connection with the Services. As between Consultant and Client, all Consultant Proprietary Information, Consultant Technology and Deliverables are and shall remain the sole property of Consultant. Client shall not obtain any rights, title or interests in or to Consultant Proprietary Information, Consultant Technology and Deliverables, other than the limited right and license to use the Deliverables as set forth in Section 5(B).
B. During the term of this Agreement, Consultant hereby grants to Client a limited, non-exclusive, royalty-free, revocable, non-transferrable (except as part of a permitted assignment of this Agreement), non-sublicensable (except to Client’s Affiliates and service providers) United States license (i) to use the Deliverables solely for Client’s activities contemplated by the applicable Order Form under which such Deliverables were provided, and (ii) to authorize its contracted service providers to use the Deliverables solely in furtherance of such activities performed solely on behalf of Client, and solely to the extent that Client’s service provider is bound by use restrictions and contractual obligations of confidentiality and adherence to applicable laws and regulations which are no less restrictive than the obligations set forth in this Agreement. Client’s and its service providers’ license to use Deliverables is limited to the license term set forth in the applicable Order Form. In order to ensure that Client (and its service providers) timely terminate their use of audience segment Deliverables upon the expiration of the applicable license term, the audience segment may be flooded with additional, irrelevant records which are not responsive to Client’s audience criteria. Accordingly, Client acknowledges and agrees that any use of an audience segment after the expiration of the license term set forth in the applicable Order Form may be disadvantageous to Client and result in significant advertising costs to Client, and Applecart will not be responsible or liable for any costs, damages, or other losses arising from such unauthorized use of audience segment Deliverables after the expiration of the applicable license term.
C. Client will not disclose the Deliverables to any third party, except for Client’s Affiliates and service providers, and then solely as necessary to assist Client with exercising its rights in this Agreement subject to a written agreement that is at least as protective of the Deliverables as this Agreement. Client shall promptly notify Consultant of any unauthorized disclosure or use of the Deliverables, including any use of the Deliverables for the benefit of a third party. Client will provide all reasonable assistance to cause such any unauthorized use to cease and, if requested by Consultant, to cause the return or destruction of any such Deliverables.
6. DISCLAIMERS
BECAUSE ALL SERVICES ARE UNDERTAKEN ON CLIENT’S BEHALF, THE CLIENT SHALL BE SOLELY RESPONSIBLE FOR ENSURING THAT ALL SERVICES ARE COMPLIANT WITH ALL APPLICABLE LAWS AND FOR CONSULTING WITH LEGAL COUNSEL, AS NEEDED. CONSULTANT SHALL REASONABLY COOPERATE WITH CLIENT AND ITS COUNSEL IN CONNECTION WITH LEGAL COMPLIANCE, AND TAKE ACTIONS REASONABLY REQUESTED BY CLIENT OR BY CLIENT’S COUNSEL TO FACILITATE SUCH COMPLIANCE.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND THE DELIVERABLES ARE PROVIDED ON AN “AS-IS” BASIS, AND CONSULTANT (I) MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES AND THE DELIVERABLES, (II) DISCLAIMS ANY WARRANTY THAT THE SERVICES AND THE DELIVERABLES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED, AND (III) DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AND THE DELIVERABLES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
7. INDEMNIFICATION AND LIMITATION OF LIABILITY
A. Consultant shall indemnify, defend, and hold harmless Client and its Affiliates and its and their respective managers, directors, members, shareholders, officers, employees and representatives from and against all out-of-pocket costs, damages, losses, judgements, fines, and expenses (including reasonable attorneys’ fees) incurred by Client or its indemnified parties in connection with any third-party demand, claim or proceeding arising from any infringement by Consultant’s Technology or Services of any third party’s United States patent, trademark, copyright, or trade secret rights, except to the extent any such infringement arises from (i) alterations made by Client or third parties to Consultant’s Technology or Services without Consultant’s consent, (ii) any materials, information, specifications or instructions provided by Client, (iii) breach of this Agreement or improper or unauthorized use of Consultant’s Technology or the Services by Client or any third party obtaining access through Client, (iv) combination of Consultant’s Technology or Services with products or services that are not provided by Consultant, or (v) Proposed Trademarks or Proposed Patents (as those terms are defined in the Creative Services Addendum, where applicable). Should Consultant’s Technology or Services become, or in Consultant’s opinion likely to become, the subject of a claim of infringement or misappropriation, Consultant may, at its option and expense, either: (i) procure for Client the right to continue to use Consultant’s Technology or Services, (ii) replace or modify the infringing portions of Consultant’s Technology or Services to make their use non-infringing without loss of substantial functionality, or (iii) terminate Client’s license for the allegedly-infringing portions of Consultant’s Technology or Services or this Agreement. If Consultant elects option (iii), Consultant shall refund to Client the unused portion of any fees prepaid under this Agreement. The infringement indemnification remedies provided herein shall be Consultant’s sole liability, and Client’s sole and exclusive remedy, for any claims or allegations relating to intellectual property infringement or misappropriation.
B. Client shall indemnify, defend, and hold harmless Consultant and its Affiliates and its and their respective managers, directors, members, shareholders, officers, employees and representatives from and against all out-of-pocket costs, damages, losses, judgements, fines, and expenses (including reasonable attorneys’ fees) incurred by Consultant or its indemnified parties in connection with any third-party demand, claim or proceeding that arise from (i) Client’s use and/or Client’s service provider’s use of or instructions for the Services and/or Deliverables (including, without limitation, any use of Creative Content (as defined in the Creative Services Addendum, where applicable), unless Consultant acts in a manner inconsistent with instruction from Client; (ii) the transmission or use by Consultant (or by Consultant’s service provider (as applicable)) of Client-provided and/or Client-approved content or materials to third-party individuals or entities at Client’s direction; (iii) Client’s actual or alleged breach of this Agreement, including, without limitation, Client’s actual or alleged breach of the Advertising Services Addendum, the Securities Addendum, the Political Services/Deliverables Addendum, the Creative Services Addendum, and/or the Data Onboarding Addendum (each of the foregoing as applicable), or Client’s actual or alleged failure to comply with the Advertising Destination Requirement; or (iv) the actual or alleged violation of applicable laws, rules, or regulations by Client, Consultant’s compliance with Client’s instructions for the Services and/or Deliverables, and/or Consultant’s use of Client-provided and/or Client-approved content or materials. In addition, and without limiting the foregoing, Client shall reimburse Consultant for all out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Consultant in connection with the production of documents, the disclosure of information, or the provision of testimony related to the Services or Deliverables pursuant to any subpoena, court order, or similar process.
C. An indemnified party shall promptly provide the indemnifying party with written notice of any claim for which it seeks indemnification hereunder, and the indemnifying party shall have the right to assume the defense thereof; provided, however, that failure of the indemnified party to provide such notice will not release the indemnifying party from any of its indemnity obligations except to the extent that the indemnifying party’s ability to defend such claim is materially prejudiced by such delay. The indemnifying party shall not settle or compromise any such claim without the full release of the indemnified party from all liabilities and obligations (except for any obligations that the indemnified party has consented to in writing), and such settlement shall not impose any obligation on the indemnified party (including the payment of any amount) without the prior written consent of the indemnified party. The indemnifying party shall also not admit liability or wrongdoing on behalf of an indemnified party without the indemnified party’s prior written consent. Each party shall have the right to participate, at its expense, in the defense of any claim covered hereunder with counsel of its own choosing.
D. IN NO EVENT SHALL CONSULTANT’S AGGREGATE LIABILITY TO CLIENT ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AGGREGATE FEES PAID TO CONSULTANT BY CLIENT UNDER THE ORDER FORM UNDER WHICH THE LIABILITY ARISES IN THE SIX (6) MONTHS PRECEDING THE LATEST EVENTS GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL CONSULTANT, ITS DIRECTORS, EMPLOYEES, AGENTS, MEMBERS, MANAGERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOST DATA, GOODWILL, USE, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT. THE FOREGOING LIMITATIONS AND DISCLAIMERS OF LIABILITY SHALL APPLY EVEN IF A PARTY KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL CONSULTANT’S EMPLOYEES, MEMBERS, MANAGERS, OFFICERS, DIRECTORS, OR ANY OTHER INDIVIDUALS AFFILIATED WITH CONSULTANT BE HELD PERSONALLY OR INDIVIDUALLY LIABLE FOR ANY DAMAGES OR LOSSES INCURRED BY CLIENT OR BY ANY OTHER PERSON IN CONNECTION WITH THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY. NEITHER PARTY MAY BRING AN ACTION IN ANY FORM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
8. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the State of New York, without giving effect to the conflicts of laws rules thereof. Exclusive jurisdiction and venue for the adjudication of any disputes relating to this Agreement shall be in the state and federal courts (including the appellate courts) having jurisdiction for New York, New York, and the parties hereby consent to the jurisdiction and venue of such courts.
9. ENTIRE AGREEMENT
Except as herein expressly provided, notwithstanding anything to the contrary in this Agreement or elsewhere, this Agreement and any Order Form agreed upon by the parties, constitutes the entire understanding between the parties hereto with respect to the subject matter hereof and shall supersede all previous and/or contemporaneous negotiations, commitments, understandings and agreements. Without limiting the foregoing, and notwithstanding anything to the contrary in this Agreement or elsewhere, in the event of any conflicting or inconsistent terms referenced in, or purporting to govern, a purchase order (or equivalent document), this Agreement shall control. Notwithstanding anything to the contrary in this Agreement or elsewhere, any amendment to this Agreement shall not be binding unless such amendment (i) expressly and specifically references this Agreement, and (ii) is duly executed by the parties.
10. NOTICES
All notices or requests required to be given under this Agreement and all other communications related to this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered, sent by nationally recognized overnight courier with delivery confirmation, or mailed, first class, by registered or certified mail return receipt requested. In the case of Consultant, notices must be sent to the address set forth in the first paragraph of this Agreement. In the case of Client, notices must be sent to the address set forth in the applicable Order Form. All notices hereunder shall be effective when received by the party receiving notice. Either party may change such address by written notice issued and delivered as above.
11. TERMINATION
A. Either party may, upon written notice to the other party, terminate this Agreement (and all Order Forms) or an affected Order Form in the event of a material breach of this Agreement or an Order Form by the other party, and such breach is not cured within thirty (30) days after receipt of written notice by the non-breaching party specifying, in reasonable detail, the nature of the breach; provided however, that if Client fails to make a payment when due, and more than five (5) business days have elapsed without it being paid, Consultant shall have no obligation to continue providing any Services hereunder until such payment is received by Consultant; and Consultant may terminate the Agreement if not paid within a fifteen (15) day cure period following written notice. For the avoidance of doubt, Client acknowledges and agrees that any breach of the Advertising Services Addendum, the Securities Addendum, the Political Services/Deliverables Addendum, the Creative Services Addendum, and/or the Data Onboarding Addendum (each of the foregoing as applicable) is a material breach of this Agreement. In addition, if there are no outstanding Order Forms under this Agreement, either party may, at any time, furnish the other party with a written notice that this Agreement is terminated.
B. Immediately upon any termination or expiration of this Agreement or an applicable Order Form, Client (and its Affiliates and service providers, if applicable) will return, or destroy and certify such destruction in writing, any Proprietary Information of Consultant, including the Deliverables furnished under any such expired or terminated Order Form, in Client’s possession or control. In the event that any Deliverables or other Proprietary Information of Consultant remain in the possession or control of Client following any termination of this Agreement, the terms of Sections 4 and 5(C) shall remain in effect for as long as such Deliverables or other Proprietary Information remain in the possession or control of Client.
C. Notwithstanding anything to the contrary in this Agreement, the following provisions shall survive any termination or expiration of this Agreement for any reason: Sections 4, 5.A., 5.C., 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16, along with any other provisions that, by their nature, are intended to survive.
12. MODIFICATIONS
Consultant reserves the right to modify this Agreement for any reason. Client should look at this Agreement regularly and the “Last Updated” date at the beginning of this Agreement. Consultant will use reasonable efforts to give Client notice of these modifications, such as posting notice of modifications on this web page. By continuing to use the Services and/or Deliverables after Consultant makes these modifications, Client agree that it will be subject to the modified Agreement with respect to Order Forms entered into on or after the date of the modification; however, we will not apply the modifications to the Agreement retroactively to Order Forms entered into before the date of the modification unless Client affirmatively consents. If Client does not agree to the terms of the Agreement as modified pursuant to this paragraph, Client must discontinue its use of the Services and Deliverables. Except as otherwise expressly provided in this Section 12, no modifications to this Agreement shall be valid unless made in writing and signed by a duly authorized representative of Client and by Consultant, and neither the acquiescence in any performance at variance to the provisions of this Agreement nor the failure to exercise any right or enforce any obligation hereunder shall be deemed a modification of this Agreement.
13. CONFLICTS
In the event of any conflict between the terms set forth in an Order Form and the terms contained the main body of this Agreement, the terms of the Order Form shall govern with respect to the subject matter in conflict to the extent the Order Form expressly references the provision of the Agreement to be overridden.
14. ASSIGNMENT
This Agreement may not be assigned, in whole or in part, by either party without the prior written consent of the other party; provided, however, that Consultant may assign this Agreement, without notice to Client, (i) to any successor to substantially all its business or assets by merger, reorganization, combination, consolidation, purchase of assets or otherwise, or to any party acquiring substantially all of the assets or business of the business unit of Consultant to which this Agreement relates, or (ii) to an Affiliate. “Affiliate” means any entity directly or indirectly controlling, controlled by or under common control with a party where “control” of an entity means ownership or the ability to direct the voting of at least fifty percent (50%) of the equity voting interests in such entity.
15. FORCE MAJEURE
Consultant will not be liable for any breach of the Agreement, for any delay or failure of performance, resulting from any cause beyond Consultant’s reasonable control, including but not limited to the weather, unavailability of utilities or communications services (including access to the Internet), civil disturbances, criminal acts of third parties, acts of terror, acts of civil or military authorities, pandemics, government shutdowns, or acts of God.
16. NO DRAFTSMAN’S PRESUMPTION.
The parties acknowledge that each party had the opportunity to engage counsel in connection with drafting, reviewing and negotiating this Agreement and that, accordingly, no draftsman’s presumption or similar rule of construction shall be applied to construe this Agreement in favor of or against either party.
