This Marketing Services Subscription Agreement (“Agreement”) is made and entered into between TriDigital, LLC (“TriDigital”)
and [Company Name] (“Client”). TriDigital and Client are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.
R E C I T A L S:
The purpose of this Agreement is to state the terms and conditions under which TriDigital will provide its subscription services to Client during the course of this Agreement.
Now, therefore, in consideration of the mutual promises contained in this Agreement, Client and TriDigital agree as follows:
- SERVICES PROVIDED. During the term of this Agreement, TriDigital will provide to Client a marketing package consisting of those items identified on Exhibit A (Statement of Work) attached hereto and incorporated herein by reference that have been initialed by the Parties (“Marketing Deliverables”). During the fulfillment phase of this Agreement, (as defined in the Statement of Work, the 1. SERVICES PROVIDED. During the term of this Agreement, TriDigital will provide to Client a marketing package consisting of those items identified on Exhibit A (Statement of Work) attached hereto and incorporated herein by reference that have been initialed by the Parties (“Marketing Deliverables”). During the fulfillment phase of this Agreement, (as defined in the Statement of Work, the “Fulfillment Phase”) Marketing Deliverables includes 5 collateral requests. Client may select from the list of Collateral Pieces set forth on the Statement of Work. TriDigital will respond to a Client’s request for a Collateral Piece within twenty-four (24) hours and will use commercially reasonable efforts to provide a resolution to the request within the timeline given at the receipt of the request. In limited circumstances, such as interruption of service or similarly urgent situations affecting Client’s business, TriDigital will make commercially reasonable efforts to respond within 30 minutes and provide a resolution within twenty-four (24) hours.
- TERM AND GUARANTEE
- Subject to Section 2.b, the term of this Agreement is 24 months (the “Term”). The Term will commence on the date on which both of the following conditions have been satisfied: (i) Client has paid the first installment of the Fee (defined in Paragraph 3 below), and (ii) this Agreement has been fully executed by the Parties.
- TriDigital does not sell or generate revenue from purchased list(s). TriDigital is not responsible for purchasing or procuring a list on behalf of the client. Client is free to use any list procurement company or services they choosec. TriDigital cannot take responsibility for list quality. Any list(s) that TriDigital receives from the Client is considered to contain accurate prospect information and that all prospects have met a minimum qualification to do business with the client. Any client lists must be labeled as “Current Clients”. All other list(s) should be prospect lists only.
- TriDigital guarantees that Client will receive at least 180 Warm Leads during the first 9 months of the Fulfillment Phase (the “Warm Lead Guarantee”). For purposes of this Agreement, a “Warm Lead” is the occurrence of any of the following:
- Client’s receipt of an email sent in response to a marketing campaign
- A download of materials from Client’s website- A phone call made to Client directly from Client’s website
- Submission of a form through the Client’s website
- A click-through on a link included in an email or newsletter campaign
- Multiple clicks on a campaign
- Subscription to Client’s newsletter
- If Client does not receive at least 180 Warm Leads during the first nine months of the Fulfillment Phase, Client will have the option to cancel this Agreement after 12 months by providing written notice to TriDigital within 30 days following the end of such 12-month period. However, the Warm Lead Guarantee will be invalid and Client will not have the option cancel after 12 months if any of the following have occurred: Client has not complied with the Revisions and Approval Process described in this Agreement; the timeline set forth in the Statement of Work has been extended; or Client has inhibited TriDigital’s ability to market for Client. If Client does not exercise the option to cancel or if the Warm Lead Guarantee has become invalid, this Agreement will continue for the full 12-month term unless earlier terminated in accordance with Section 6.
- FEES. Client agrees to pay TriDigital a fee of $90,000 (the “Fee”) for the Marketing Deliverables. The Fee is payable in monthly installments of $7,500, with the first such installment due at the time of the execution of this Agreement, and as invoiced by TriDigital to Client thereafter.
- PROPERTY OF CLIENT. All current logos, trademarks or other existing intellectual property belonging to Client shall remain the property of Client during the term of this Agreement.
- PROPERTY OF TRIDIGITAL. All current logos, trademarks and other existing intellectual property belonging to TriDigital, including the content in the pre-made video library (“Library Content”), shall forever remain the property of TriDigital. Subject to the exception in Section 7, below, all materials created for Client during the Term shall belong to Client.
- EARLY TERMINATION AND TERMINATION FEE. Either Party may terminate this Agreement for any reason by thirty (30) days’ written notice to the other Party. In the event Client terminates this Agreement prior to expiration of the Term. Client will owe all Fees that would have been payable during the full Term unless such early termination is made in accordance with Section 2.b oris for cause (as defined below). Fees for the remainder of the Term will be due and payable within thirty (30) business days of the effective date of termination. For the purpose of this Agreement, “cause” means TriDigital’s material breach or default of a material obligation under this Agreement.
- OWNERSHIP OF CREATED ASSETS. All Marketing Deliverables and all code, documentation, reports and other materials developed by TriDigital and incorporated into or used to develop Client’s Marketing Deliverables or required to operate Client’s website (other than third-party operating system software , third-party networking software, web browsers, and hardware) andall changes and enhancements thereto, all of which shall (collectively, the “Created Assets”) will be the property of TriDigital until all Fees owed by Client under this Agreement have been paid in full. Upon the termination or expiration of this Agreement andthe payment in full of all fees owed by Client under this Agreement, the Created Assets, with the exception of the videos from the TriDigital pre-made video library, will be considered “work made for hire” and will be owned exclusively by the client. Marketing Deliverables will be delivered in printed and/or unencrypted electronic format, as requested by Client, and the related source code shall be delivered to Client in appropriate unencrypted electronic format.
- CONFIDENTIALITY. All statistical, financial and personnel data relating to the business of Client that are confidential and clearly designated as such will be kept in the strictest confidence by TriDigital and its employees, except as may be required by law. However, this obligation does not apply to any data that has become publicly available or that is rightfully obtained from third parties. TriDigital will not be obliged to keep any materials confidential that may be developed by TriDigital during the term of this Agreement and thereafter.
- REVISIONS AND APPROVAL PROCESS.
- Within 48 hours following TriDigital’s delivery of any Marketing Deliverable to Client for review, Client must either accept such Market Deliverable or request revisions to such Marketing Deliverable. If Client does not, within such 48-hour period, either (i) inform TriDigital that Client accepts the delivered product, or (ii) request revisions, the Marketing Deliverable will be deemed accepted and no longer owed to Client under this Agreement. Emails and Newsletters will be sent out as per the marketing plan if Client’s acceptance or request for revisions is not received within 48 hours.
- Client may request up to two revisions of each Marketing Deliverable delivered pursuant to this Agreement, free of charge. Any additional revisions (each an “Excess Revision”) will be billed at $150 per hour. TriDigital will make Client aware of how many revisions the client has made or how many are left. Any Excess Revision subject to additional billing will be recorded via a change order, which must be signed by client. Once Client has informed TriDigital that Client accepts a Marketing Deliverable, Client may no longer request revisions to such Marketing Deliverable.
- A request for revisions to a Marketing Deliverable must be submitted to TriDigital in one document or in one order, all at one time. If requests for revisions are submitted in separate documents or orders or at different times, each submission will be considered a separate request for revisions.
- Some requested revisions may affect timelines given within the Statement of Work. If this occurs, TriDigital will provide the Client a change order that includes the reasons for the extension and will provide the new timeline. Client may decline the revisions if they would like to keep the original timelines given in this agreement. If client decides to keep the revisions within the change order the new time lines will supersede the timelines provided in this agreement.
- CHANGE ORDERS.
Change orders will be required for any Excess Revisions, for any additions to or changes to the Statement of Work, and for any events requiring changes to the timeline contained in the Statement of Work. All change orders will be prepared by TriDigital and will include the following information: Client name; name of Client representative requesting the change; description of the change; revisions to be made to Marketing Deliverable; reason for the change; and price per hour. All change orders must be signed by both Parties and will constitute modifications of this Agreement.
- SEO. TriDigital’s SEO program employs “White Hat” best practices SEO that attempts to generate more site visitors and convert them into customers. TriDigital utilizes its proven “best practices” methodology in the design and implementation of SEO campaigns. There are clear and distinct cycles to the optimization of a website, and our SEO approach involves a strategic, phased implementation. To effectively optimize Client’s website, TriDigital will make regular updates to the site including changes to title tags, meta tags, visible site text, links, images and video. We may also make changes to Client’s off-site properties (including Google+ page, Social Media sites, etc.). TriDigital will have no obligation to update any information or content on the website.Links may be established to and from other websites that contain information created, published, maintained, or otherwise posted by persons or entities independent of TriDigital. TriDigital does not control these websites; nor does it guarantee the content, accuracy, completeness, or timeliness of information on other websites. Linkage to other websites does not constitute or imply an endorsement, recommendation, or preference by TriDigital. TriDigital is not responsible for, and expressly disclaims all liability for, damages of any kind arising out of use of, reference to, or reliance on such information.Given the dynamic nature of all search engines, the Internet, and competing entities, it is not possible to guarantee results of natural and/or paid search engine campaigns.
- LIMITATION OF LIABILITY. In no event shall TriDigital or its subconsultants of any tier be liable in contract, tort, strict liability, warranty or otherwise, for any special, incidental or consequential damages, such as, but not limited to, delay, disruption, loss of product, loss of anticipated profits or revenue, loss of use of the equipment or system, non-operation or increased expense of operation of other equipment or systems, cost of capital, or cost of purchase or replacement equipment systems or power.
- INDEMNITIES. Client agrees to indemnify and hold harmless TriDigital of and from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, to the extent caused by or arising out of or relating to the work of TriDigital.
- MISCELLANEOUS PROVISIONS.
- Texas Law to Apply. This Agreement shall be governed by and construed under and in accordance with the laws of the State of Texas, without regard to choice of law principles. The federal and state courts sitting in Collin County, Texas, and Dallas County, Texas, shall be the exclusive venue for and shall have exclusive jurisdiction over any dispute arising under this Agreement.
- Parties Bound. This Agreement shall be binding on and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
- Legal Construction. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, that invalidity, illegality or unenforceability shall not affect any other provision in this Agreement and this Agreement shall be construed as if the invalid, illegal or unenforceable provision had never been contained in it.
- Prior Agreements Superseded. This Agreement constitutes the sole and only agreement of the Parties and supersedes any prior understandings or written or oral agreements between the Parties respecting the subject matterof this Agreement.
- Notice. Any notice or other communication required or permitted by this Agreement to be given to a Party will be in writing and will be deemed given if delivered personally or mailed by certified mail, return receipt requested, postage prepaid or sent via email to the Party’s address written below or at such address as the Party may have previously specified by like notice.
- Authority. Client hereby warrants and represents that the individual executing this Agreement on its behalf is duly authorized and has legal capacity to execute and deliver this Agreement. Each Party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such Party and enforceable in accordance with its terms.
- Attorney’s Fees and Costs. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
- Amendments. No amendment of or modification to this Agreement will be valid and enforceable unless in writing and executed by both Parties.