HOLLYWORLD MEDIA EXCLUSIVE DIGITAL MARKETING AND HOSTING
SERVICES AGREEMENT
THIS AGREEMENT (this “Agreement”), dated [insert date] (the “Effective Date”), is
between XXX, a [insert the state in which your Client is incorporated in]
corporation (“Agency”) whose address for the purposes of this agreement is [insert your
address], and [insert name of the client]., whose address for the purposes of this
agreement shall be [insert address] (“Client”).
RECITALS
A. Agency is engaged in the business of providing digital marketing and hosting
advertising services.
B. Client is desirous of engaging the Agency to provide the digital marketing and
hosting services, while the Agency is desirous of providing the said services to
the client
C. Client and Agency desire to enter into this Agreement to allow Agency to provide
certain digital advertising and marketing services, (as described herein)
exclusively, project basis subject to the terms and conditions of this Agreement.
Now, therefore, for good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Services;
Services. During the term of this Agreement, Client shall authorize Agency, on an
exclusive basis, to perform various digital advertising and/or marketing projects. The
services include as provided herein below and in Schedule 1: Program Offering at the
end of this agreement.
i. [list the services]
2. Performance of the Services; Deliverables.
(a) Performance of the Services. Agency will have exclusive rights to live-streaming
and digital event hosting of the client’s film(s)
(b) Deliverables. Client shall share rights to live-stream event recordings with agency
for 1 full year.
3. Compensation.
(a) Fee. As consideration for the Services, Client shall pay Agency a total fee in an
amount equal to $5000. This amount will be paid directly to the Agency’s
account, [insert details including account number of the contractor’s bank].
(b) Earnings. The remaining income earned from the digital theater earnings are split
65/35, with the client receiving 65% and Agency receiving 35% of earnings
(c) Business Expenses. Client shall reimburse Agency for all reasonable, out-of-
pocket business expenses actually incurred by Contractor during the Term in
performing the Services; provided, that (i) any such expense is pre-approved by
Client, and (ii) Agency submits to Client appropriate supporting documentation
for all such expenses in accordance with Client’s policies and procedures.
(d) Tax Matters. Client and Agency agree that Agency is an independent Contractor,
and not as an employee of Client, with respect to the Services performed
hereunder. All fees payable to Agency hereunder shall be paid in full, without any
withholding, deduction, or offset of any Federal, state, or local income taxes,
employment taxes, or other withholdings.
4. Independent Contractor.
a. The parties acknowledge and agree that Agency and Client are, and at all
times during this Agreement shall remain, independent contractors in relation to each
other, and that neither party nor its employees or other representatives are authorized
to make any representations or any commitment on the other party’s behalf unless
previously authorized by such party in writing. Each party’s obligations to the other
hereunder are exclusively contractual in nature. Neither this Agreement nor the
performance of Services shall, or be deemed to, create a partnership, joint venture,
agency, fiduciary or employment relationship or any other legal relationship between the
parties. Agency’s personnel shall not be deemed employees or agents of Client, and
Agency has and hereby retains the right to exercise full control of and supervision over
the performance, employment, direction, compensation and discharge of any and all of
Agency’s employees performing Services hereunder. Agency shall be responsible for all
employment withholding or other tax liability of any kind or nature arising in respect of
Agency’s employees.
5. Termination.
a. Term of Agreement. This Agreement shall remain in full force and effect for a
term of 120 days following the Effective Date unless Agreement is terminated earlier as
provided herein.
b. Termination.
i. Client or Agency may terminate this Agreement at any time for
convenience upon Ten (10) days prior written notice to the other party. The respective
rights and responsibilities of Agency and Client, including, without limitation, payment
obligations, will continue in full force during the notice period. Upon such termination of
this Agreement, Client shall promptly pay Agency for all Services rendered and
expenses incurred and unrecoverable prior to the effective date of the termination of this
Agreement or Services.
ii. Either party also may terminate this Agreement at any time if: (aa) the
other party materially breaches any of its obligations hereunder and such breach has
not been cured within Ten (10) days of written notice specifying the nature of the
breach; (bb) either party attempts to assign this Agreement or any obligation hereunder
without the other party’s consent, except as otherwise allowed hereunder; or (cc) any
assignment is made of the other party’s business for the benefit of creditors.
6. Deliverables; Approval.
a. Upon full payment, (ii) Client shall own all work under this agreement and
prepared uniquely for Client hereunder, excluding any third-party research and
materials included in such reports; and (ii) all video or television media plans,
brochures, ad slicks, posters, direct mail pieces, email, data, written material or any
other media prepared by Agency’s personnel for Client in the performance of Services.
(collectively, the “Deliverables”) Agency agrees to execute all documents which Client
reasonably determines to be necessary or convenient for use in applying, perfecting or
enforcing trademarks, copyrights or other intellectual property rights in the Deliverables.
Agency will retain exclusive ownership of all (a) its know-how, concepts,
techniques, methodologies, ideas, templates, routines, sequences, software, firmware,
designs, scripts, interfaces, programming code, applets, executables, objects, files,
utilities and tools that existed prior to the performance of Services hereunder
(collectively, “Agency’s Elements”) and (b) ideas, concepts, techniques and know-how
discovered, created or developed by Agency during the performance of Services that
are of general application and that are not based on or derived from Client’s
Confidential Information. To the extent the Deliverables incorporate Agency’s Elements,
Agency gives Client a non-exclusive, non-transferable (except to Client’s affiliates,
subsidiaries or successors), perpetual, royalty-free, worldwide right to use such Agency
Elements solely in connection with such Deliverables. For clarity, all improvements,
modifications, and enhancements of Agency Elements shall also remain the sole
property of Agency.
b. Notwithstanding the foregoing, all materials, rights, and intellectual property owned
by third parties (such as talent rights, photography, artwork, props and music, and any
open source software or code) and incorporated into the Deliverables shall remain the
sole and exclusive property of such third parties, and Client agrees to use such third
party materials consistent with the restrictions, limitations, obligations and disclaimers
for such third party materials communicated to Client in writing. Further, Client shall
receive under the third-party sublicense only such rights and warranties as are offered
by such third-party licensor who shall be solely responsible to Client for such materials.
c. Agency will submit to Client for approval all Deliverables, which Client shall review
and respond to Agency within ten (10) business days of receipt thereof of its
acceptance or rejection of the applicable Deliverables. In the case of a rejection of any
of the Deliverables, Client shall provide Agency in writing all details related to the basis
for rejection of such Deliverables provided that any such rejection by Client must be
solely based on whether or not Agency has materially conformed to the mutually agreed
upon written specifications set forth in the Work Order (a “Deficiency”). To the extent
Client fails to respond within ten (10) business days or otherwise publicly uses the
Deliverables, such Deliverables shall be deemed accepted by Client. If a Deficiency is
claimed by Client, and such Deficiency is not due to an act or omission of Client and/or
a failure to cooperate with Agency in accordance the terms of this Agreement (and/or
the applicable Work Order), Agency shall, within a mutually agreed upon time frame,
revise the applicable Deliverable at Agency’s own expense, redeliver the applicable
Deliverable, and the acceptance procedure described herein will be followed again. If,
following resubmission by Agency of the applicable Deliverable, Client rejects such
Deliverable again and claims a Deficiency, the parties may agree to extend the cure
period or either party may terminate the applicable portion of the Work Order. If either
party chooses to terminate a portion of the Work Order, Agency shall, as Client’s sole
and exclusive remedy, refund any pre-paid fees for Services not yet rendered by
Agency as of the date of any such termination.
d. The Agency will require Client’s written approval before ordering production
materials, making contracts with suppliers, and making reservations or contracts for
media space or time and talent. Agency will promptly notify Client of all materials, space
and/or time ordered and amendments thereto. Client will designate in writing to whom,
in addition to its Vice President, Marketing if any, may sign approvals and
authorizations.
7. Representations and Warranties.
a. Agency Represents and Warrants:
i. Agency and its employees, subcontractors, agents and representatives shall
perform all of the Services in a professional manner and in accordance with the
commercial industry standards.
ii. Agency and its employees, subcontractors, agents and representatives shall, at all
times, comply with all applicable federal, state and local laws, regulations and
ordinances, and be duly licensed and otherwise authorized to perform the Services.
iii. The Services and Deliverables shall not infringe or violate any U.S. copyright,
trademark, trade secret or other proprietary or privacy right of a third party.
iv. Agency shall take such reasonable actions with its employees and agents to
effectuate the intent of Section 10 and the confidentiality obligations imposed by this
Agreement, including but not limited to advising each permitted employee to whom
Confidential Information is disclosed of his/her obligations regarding confidentiality and
non-use of such information.
b. Client Represents and Warrants:
i. Client and any information, data, or materials that Client provides to Agency shall
not infringe or violate any U.S. copyright, trademark, trade secret or other
proprietary or privacy right of a third party.
ii. Client and its employees, subcontractors, agents and representatives shall, at all
times, comply with all applicable federal, state and local laws, regulations and
ordinances.
iii. Client shall take such reasonable actions with its employees and agents to
effectuate the intent of Section 10 and the confidentiality obligations imposed by
this Agreement, including but not limited to advising each permitted employee to
whom Confidential Information is disclosed of his/her obligations regarding
confidentiality and non-use of such information.
iv. Client shall assist and cooperate with Agency and Agency’s personnel whenever
reasonably necessary by making Client’s personnel available to Agency for
consultation and providing other information and data required for the
performance of the Services.
v. Client shall be responsible for the accuracy, completeness and propriety of
information concerning its products, services and customers which it furnishes to
Agency in connection with the performance of this Agreement, and when
applicable, Client represents and warrants that it has or will have, through written
agreements with its employees, agents, representatives, and third party
providers, all releases, licenses, permits or other authorization to use copyrighted
materials, data, and any other property or rights belonging to third parties for
items that Client provides to Agency for use by Agency in performing Services
and/or preparing Deliverables for or on behalf of Client.
c. Disclaimer: EXCEPT AS EXPRESSLY PROVIDED HEREIN, AGENCY MAKES NO
WARRANTY, EXPRESS OR IMPLIED, REGARDING THE DELIVERABLES OR
SERVICES TO BE PROVIDED HEREUNDER OR THAT ANY SOFTWARE OR OTHER
ELECTRONIC DEVICES PROVIDED OR WEBSITE HOSTED BY AGENCY WILL BE
ERROR FREE OR OPERATE WITHOUT INTERRUPTION AND THE WARRANTIES
OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
EXPRESSLY EXCLUDED. FURTHERMORE, NOTWITHSTANDING ANYTHING TO
THE CONTRARY, AGENCY SHALL NOT BE LIABLE IN ANY MANNER FOR DELAYS
IN DELIVERY OR INSTALLATION OR INSERTION THAT ARE NOT THE DIRECT
RESULT OF AGENCY’S GROSS NEGLIGENCE AND AGENCY SHALL NOT
WARRANT ANY SERVICES OR DELIVERABLE RELATED THERETO TO THE
EXTENT ANY NON-CONFORMANCE IS CAUSED BY: (I) CLIENT’S MISUSE OR
MODIFICATION OF THE SERVICES OR DELIVERABLE WITHOUT THE PRIOR
WRITTEN CONSENT OF AGENCY; (II) CLIENT’S FAILURE TO USE CORRECTIONS
OR ENHANCEMENTS MADE AVAILABLE; (III) CLIENT’S USE OF THE SERVICES
OR WORK PRODUCT RELATED THERETO IN COMBINATION WITH ANY
PRODUCT OR INFORMATION NOT OWNED OR DEVELOPED BY AGENCY; OR (IV)
INFORMATION, DIRECTION, SPECIFICATION OR MATERIALS PROVIDED BY
CLIENT, OR ANY THIRD PARTY. CLIENT ACKNOWLEDGES THAT AGENCY HAS
NO CONTROL OVER INFORMATION AND MATERIALS ONCE THEY HAVE BEEN
PUBLISHED, RELEASED OR POSTED IN THE PUBLIC DOMAIN AS REQUESTED
OR APPROVED BY CLIENT, INCLUDING, WITHOUT LIMITATION, VIA SEEDING
MATERIALS ON SOCIAL NETWORKING, VIDEO SHARING WEBSITES, THE USE
OF INTERNET-BASED “WIDGETS” OR ANY OTHER PLATFORMS THAT MAKE USE
OF USER-GENERATED CONTENT NOR DOES AGENCY HAVE ANY CONTROL
OVER PRIVACY DISCLOSURES ON THIRD PARTY SITES OR THIRD PARTY
DISCLOSURES GENERALLY. AS SUCH, AGENCY SHALL NOT BE RESPONSIBLE
FOR ENSURING THE CONTENT OR ACCURACY OF WHAT ANY THIRD PARTY
PUBLISHES OR FOR ANY OTHER THIRD-PARTY ACTIONS.
8. Indemnification.
Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the
other party, its parent, affiliates and their respective employees, directors, officers,
members, managers, shareholders, agents, successors, and permitted assigns
(collectively, “Indemnitees”), from and against any third party claims, suits, demands,
actions, fines, penalties, liabilities, judgments, losses, damages, injuries, costs and
expenses (including reasonable attorneys’ fees and costs) (individually and collectively,
“Liabilities”) resulting from: (a) claims for intellectual property infringement or
misappropriation of trade secrets, and/or invasion of privacy; (b) breach of any
obligation, representation, or warranty in this Agreement; or (c) the gross negligence or
willful misconduct of the Indemnifying Party or its employees, agents, representatives,
or subcontractors.
9. Limitations of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT
SHALL CLIENT OR AGENCY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL,
INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES,
LOST PROFITS, LOST SALES OR ANTICIPATED ORDERS, OR DAMAGES FOR
LOSS OF GOODWILL UNDER THIS AGREEMENT, EVEN IF A PARTY WAS
INFORMED OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF
SUCH DAMAGES OR LOSS. THIS LIMITATION APPLIES REGARDLESS OF
WHETHER SUCH DAMAGES, CLAIM OR LOSS ARE SOUGHT BASED ON
BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT
LIABILITY, MISREPRESENTATION, OR ANY OTHER LEGAL OR EQUITABLE
THEORY. CLIENT AGREES THAT (I) AGENCY’S LIABILITY UNDER THIS
AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY RETAINED BY
AGENCY AS ITS FEE FOR THE DELIVERABLES OR SERVICES WITH RESPECT
TO WHICH THE CLAIM IS MADE, AND (II) CLAIMS FOR DAMAGES MUST BE
MADE BY CUSTOMER WITHIN ONE (1) YEAR OF THE INCIDENT TO WHICH THEY
RELATE OR BE FOREVER BARRED. EACH PARTY SHALL USE REASONABLE
EFFORTS TO MITIGATE ANY LOSSES ARISING UNDER THIS AGREEMENT.
10. Confidential Information.
a. Obligations With Respect to Confidentiality. During the term of this
Agreement and for a period of two (2) years after the latter of (i) the termination of this
Agreement, or (ii) the termination of the final Services, each party acknowledges and
agrees that it (the “Receiving Party”) shall not use or disclose to anyone, other than
officers, employees, members, manager, directors or representatives of the Receiving
Party with a need to know for purposes of this Agreement, any Confidential Information
disclosed to the Receiving Party by the other party (the “Disclosing Party”). For
purposes of this Agreement, the term “Confidential Information” shall mean and include
any non-public financial, operational, technical and other information relating to the
present and future businesses and affairs of the Disclosing Party and its affiliates,
whether such information is provided in written, oral, graphic, pictorial or recorded form
or stored on computer discs, hard drives, magnetic tape or digital or any other electronic
medium. The confidentiality obligations herein shall not apply to any such information (i)
which is or becomes publicly known without any fault of or participation by the Receiving
Party, (ii) was in Receiving Party’s possession prior to the time it was received from
Disclosing Party or came into Receiving Party’s possession thereafter, in each case
lawfully obtained from a source other than Disclosing Party and not subject to any
obligation of confidentiality or restriction on use, or (iii) is required to be disclosed by
judicial, arbitral or governmental order or process or operation of law, in which event the
Receiving Party shall notify the Disclosing Party of the requirement of disclosure before
making such disclosure, if allowed by applicable law, and shall comply with any
protective order or other limitation on disclosure obtained by the Disclosing Party; or (iv)
is independently developed by the Receiving Party by persons not having exposure to
Disclosing Party’s Confidential Information.
b. Ownership of Confidential Information. Confidential Information shall remain
the exclusive property of the Disclosing Party and no patent, copyright, trademark or
other proprietary right is licensed, granted or otherwise transferred by this Section 10 or
any disclosure of Confidential Information to the Receiving Party.
c. Return or Destruction of Confidential Information. Receiving Party agrees to
return to the Disclosing Party, or to destroy, any and all Confidential Information
received pursuant to this Agreement, together with all copies that may have been made,
promptly upon request of the Disclosing Party or, if not requested earlier, upon
completion of the Services or termination of this Agreement. Upon return or destruction
of Confidential Information or any copies thereof, the Receiving Party shall certify in
writing to the Disclosing Party that such destruction has occurred. Notwithstanding the
foregoing, Agency may retain copies as necessary for archival purposes.
d. Injunctive Relief. Both parties acknowledge that any use or disclosure of the
other party’s Confidential Information in a manner inconsistent with the provisions of this
Agreement may cause the Disclosing Party irreparable damage for which remedies
other than injunctive relief may be inadequate, and both parties agree that the
Disclosing Party may request injunctive or other equitable relief seeking to restrain such
use or disclosure.
11. Assignment; Delegation. Neither party may assign this Agreement or any Work
Order or Change Order executed in connection herewith or delegate any of its rights or
obligations hereunder without the express written consent of the other party, except
that: (a) Agency can assign this Agreement in its sole discretion to its parent or any
affiliate or subsidiary; and (b) a party may assign all of its rights and obligations to a
third party who has acquired all or substantially all of the business or assets of such
party related to the performance of this Agreement through a sale, merger,
consolidation, reorganization or similar transaction. Any attempted assignment in
violation of this Section 11 shall be void. Except as set forth above, this Agreement shall
inure to the benefit of and be binding upon the parties, their successors and permitted
assigns.
12. Force Majeure. Except for Client’s payment obligations hereunder, neither party
will incur any liability to the other party resulting from any delay or failure to perform all
or any part of this Agreement if such delay or failure is caused, in whole or in part, by
events, occurrences or forces beyond the reasonable control and without the
negligence of such party (including, without limitation, any act of God, fire, natural
disaster, accident, riots, acts of government, acts of war or terrorism, cyber-attack,
malicious act of third parties, shortage of materials or supplies, failure of transportation
or communications or of suppliers of goods or services). In addition, Agency shall
endeavor to guard against any loss to Client as the result of the failure of media or
suppliers to properly execute their commitments, but Agency shall not be responsible
for any such failure.
13. Notices. Except as otherwise provided herein, all notices or other communications
to be given or that may be given by either party to the other shall be deemed to have
been duly given when made in writing and delivered in person, by email
correspondence; or one business day after being sent by recognized overnight courier
or five days after deposit in the United States mail, certified, postage prepaid, return
receipt requested and addressed provided hereinabove.
15. Subcontracting.
a. Agency shall not subcontract any Services or Deliverables to be performed
without Client’s prior written consent. In the event that Client approves the use of a
subcontractor, Agency agrees to do so in compliance with the following conditions:
i.Agency guarantees its subcontractor’s fulfillment of the applicable
obligations imposed on Agency by this Agreement.
ii.Agency shall promptly pay all costs of labor employed and materials and
services furnished and used in the performance of the Services and shall not allow or
permit any lien to be filed against Client or any of Client’s real or personal property.
b. The term "subcontractor" shall not include third party production companies,
photographers, stock houses, shipping companies, technology companies, hosting
companies, media providers and other vendors engaged by Agency to assist Agency in
the completion of or provide services where such assistance is incidental, ancillary or
supplemental to the services hereunder ("Vendors"). Agency will endeavor to the best of
its ability to guard against the failure of Vendors to properly execute their commitments
hereunder but Agency shall not be held responsible for any failure on the part of (i) any
Vendor or (ii) any subcontractor that Client requires or directs Agency to engage or that
performs services that Client requires or directs Agency to subcontract.
16. Waivers and Amendments. Waiver by either party of any default by the other party
shall not be deemed a waiver of any other default. No provision of this Agreement or
any Work Order or Change Order shall be deemed waived, amended or modified by
either party, unless such waiver, amendment or modification is in writing and signed by
authorized representatives of both parties.
17. Headings. The article, section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the United States of America without regard to its conflicts
of law principles. Either party may give the other party written notice of any dispute not
resolved in the normal course of business.
19. Severability. If any provisions, or any portion of any provision, contained in this
Agreement is determined to be invalid under any statute or rule of law, then it shall, to
that extent alone, be deemed omitted, and the remainder of this Agreement shall remain
in full force and effect.
20. Entire Agreement. This Agreement, including any applicable Work Orders and
Change Orders, constitutes the entire agreement between the parties with respect to
the subject matter hereof, and supersedes all prior or contemporaneous agreements,
understandings, proposals and communications, oral or written, regarding such subject
matter.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the Effective Date.
/s/_________________________________
[insert name of representative]
XXX
[date]
/s/_________________________________
[insert name of Client representative]
[insert name of client Company]
[date]
SCHEDULE 1: PROGRAM OFFERING
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