This Managed Social Media Agreement (the “Agreement”) is made as of the date set forth below by and between TIBERIUS INTERACTIVE INC, a New York Corporation (the “Company”) and purchasing user (the “Client”) (collectively referred to as the “Parties”).
WHEREAS, The Company and Client deem it in their best interests to express in this written Agreement their understandings regarding the scope of the Services that the Company will provide and the rights and obligations of the Client.
WHEREAS, The Client seeks to engage the Company as an independent contractor to provide the Managed Social Media Services described herein, and Company seeks to provide their Services according to the terms and conditions of this Agreement.
NOW, THEREFORE, In consideration of the mutual promises and covenants set forth herein, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:
This Agreement will become effective starting on the purchase date and continue for 12 months. After the initial 12-month period, this Agreement will automatically renew for successive 3-month periods unless cancelled in writing by the Company or the Client.
2. SCOPE OF SERVICES
The Company’s duties and responsibilities will include Managed Social Media Services. The social media technologies, strategy and plan used shall be agreed upon by the Company and the Client and included in Exhibit A – Statement of Work attached to this Agreement.
The Monthly Fees, Video Production Fee (if applicable), Hardware Fee (if applicable), Add-On Fees (if applicable) and any other charges or fees for Services ordered by Client are defined, collectively, as the “Fees.” Client will be responsible for paying any and all applicable sales and use taxes for the Services. Unless otherwise stated in the Customer Contract, Fees are due prior to the performance of the Services. The Agreement term shall begin upon execution of a Customer Contract, and upon such execution, Client shall pay the applicable, Add-On Fees, and the first Monthly Fee as set forth in such Customer Contract. If Client has elected to pre-pay his/her Monthly Fees and/or recurring monthly Add-On Fees, such prepayments shall be due upon execution of this Customer Contract. Monthly Fees and recurring monthly Add-On Fees shall be due and payable in advance of each calendar month following the contract date. For illustrative purposes only, if Client’s Customer Contract is dated on the fifteenth (15th) of a month, then Client’s Add-On Fees (if applicable), and first Monthly Fee shall be due and payable to Company upon signing of the Customer Contract and on the fifteenth (15th) of each calendar month thereafter, Customer shall pay the subsequent Monthly Fees and all applicable monthly recurring Add-On Fees. Alternatively, if the Client has elected to pre-pay Monthly Fees and recurring monthly Add-On Fees, such prepaid Fees shall be due and payable upon signing of the contract. Company shall begin production of the products (the “Licensed Products”) ordered by Client in accordance with the specifications set forth in the Customer Contract upon receipt of the Fees. Any amounts not paid within 30 days of the date due will bear a monthly finance charge equal to the lesser of 1.5% of the outstanding balance or the maximum amount allowed by law. In addition, Customer shall be liable for all fees incurred by Company due to payment processing fees resulting from bounced checks, insufficient funds/bank overdraft fees and/or chargebacks.
4. COPYRIGHT POLICY
The Company respects the intellectual property rights of others and will not knowingly post content that is subject to trademark, copyright or other intellectual property restrictions. Client acknowledges and agrees that all material provided by Client to the Company, including but not limited to, business names, logos, content, or any other form of intellectual property associated with the Client’s business is owned solely and exclusively owned by Client and the Company has the right to publish such content. The Company reserves the right to take down any content that in the Company’s sole discretion is in violation of this provision.
5. INDEPENDENT CONTRACTOR STATUS
The Company and the Client acknowledges and agrees that all Services will be rendered by the Company as an independent contractor and that this Agreement does not create an employer/employee relationship between the Company and Client. Thus, the Company shall have no right to receive employee benefits including, but not limited to, insurance, social security, unemployment or any other benefits. The Client shall also not be responsible for federal, state and local taxes derived from the Company’s net income or for the withholding and/or payment of any federal, state and local income and other payroll taxes.
6. COMPANY’S OBLIGATIONS TO THE CLIENT
The Company agrees to communicate and cooperate with the Client and shall provide all Services in a professional and workmanlike manner. The Company represents and warrants that they have no conflicting obligations during the course of this engagement and shall not take on commitments that would prohibit the Company from completing the Services described in Section 2 or the applicable Statement of Work. The Company further agrees to promptly notify the Client of any schedule changes that could adversely affect this Agreement. The Company further agrees to provide at least fifteen (15) days notice to the Company in the event of early termination of this Agreement.
7. CLIENT REPRESENTATIONS
Client represents that: (1) he is not a party to any agreement that would prohibit him from entering into this Agreement with the Company; (2) no trade secret or proprietary information belonging to Client’s previous employers, contractors, or associates will be disclosed by him/her to the Company; (3) Client has brought to the Company’s attention any and all matters that could impact this Agreement; and (4) Client has obtained any and all requisite permissions, licenses, and/or approvals to post, publish, or otherwise distribute via social media the information, materials and content provided to the Company for the purposes of this Agreement.
8. CONFIDENTIAL INFORMATION
The Company agrees to maintain in confidence all business information, proprietary information, trade secrets, and any other information that the Client holds as confidential. Company further agrees not to disclose to anyone, for any reason, confidential or personal information that relates to the Client’s employees, staff, clients or other business contacts other than as may be required by law. The Company agrees that all confidential information, business information, proprietary information, trade secrets, and other forms of sensitive Client information will be used solely for the benefit of the Client, and not for personal use, nor the benefit of any other third party.
9. AT-WILL ENGAGEMENT
The Company’s engagement with the Client is “At-Will.” This means that Company has the right to terminate this Agreement at any time and for any reason, in accordance with the notice requirements of this Agreement. Likewise, the Client may terminate this Agreement with or without cause at according to the term and notice requirements herein.
Client agrees to indemnify, defend and hold harmless the Company, its officers, directors, employees, subcontractors, agents, and their respective successors, heirs and assigns (the “Indemnitees”), against any claim, liability, cost, damage, deficiency, loss, expense or obligation of any kind, including attorneys fees and other costs of litigation, incurred by the Indemnitees in connection with any claims, suits, actions, demands, or judgments arising out of this Agreement including, but not limited to, actions in the form of intellectual property infringement, tort, warranty, negligence, or strict liability.
11. INTELLECTUAL PROPERTY
The Company represents that all work product provided to the Client during the course of providing the Services under this Agreement shall become the sole and exclusive property of the Client, and shall to the extent permitted by law be a “work made for hire” within the definition of Section 101 of the Copyright Act (17 U.S.C. § 101), provided however, the Company’s fees are paid in full. To the extent any work product is not deemed to be a work made for hire within the definition of the Copyright Act, the Company hereby agrees to assign to the Client all rights to such work product, provided however, the Company’s fees are paid in full.
12. ENTIRE AGREEMENT
This Agreement is the entire agreement regarding the terms and conditions of the Company’s engagement. Accordingly, it supersedes and replaces any prior oral or written communications.
The Company may update this Agreement or the applicable Statement of Work from time to time. At such times, the Company will present the Client with an updated version of this Agreement in writing, at which time the Client may either elect the new terms and continue to this engagement or decline the new terms and end the engagement.
14. EARLY TERMINATION
This Agreement may be terminated with or without cause by the Company upon fifteen (15) days prior written notice. This Agreement may be terminated by the Client with or without cause upon fifteen (15) days prior written notice subject to the restrictions included herein.
15. LIMITATION OF LIABILITY
The liability of the Company shall be limited to the total amount of fees due to Company under this Agreement. In no event shall the Company be liable for any indirect, incidental, special, consequential, or other damages.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, the Parties agree that such provision shall be excluded from this Agreement and the balance of the Agreement shall be enforceable in accordance with its terms.
17. FURTHER ASSURANCES
Each of the Parties agrees to execute, acknowledge and deliver in proper form, any additional documents and/or perform such further actions as may be necessary or appropriate to effectuate the provisions of this Agreement.
18. GOVERNING LAW
This Agreement and the rights and obligations of the Parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of New York without giving effect to principles of conflicts of law. The Parties agree that any disputes regarding this Agreement shall be subject to exclusive jurisdiction in the State of New York.