May 2024

 

THESE MASTER SERVICES TERMS AND CONDITIONS together with the attached Proposal (“Proposal”) and/or any statements of work (“SOW”) or any amendments to the Agreement as signed by the parties (collectively, the “Agreement”), shall begin on the date of signature set forth on the Attachments, as defined below (“Effective Date”), and shall be between the Client as defined in the Attachments (“Client”), and Hubbard Radio St, Louis, LLC and 2060 Digital, LLC (collectively, “Agency”).

 

WHEREAS Agency provides certain digital agency services which may include website design, search engine optimization, PPC, internet marketing, social media management, reputation management and email marketing, or other services as agreed to by the parties and as more specifically set forth herein; and

 

WHEREAS Client, in reliance on Agency’s representations, is willing to engage Agency as a non-exclusive, independent contractor to provide Client with certain digital agency services listed above, and as set forth herein;

 

NOW THEREFORE, in consideration of the obligations herein made and undertaken, the parties, intending to be legally bound, hereby agree as follows:

 

SECTION 1.  SCOPE OF SERVICES

1.1       Statements of Work/Proposal: Agency shall provide certain professional digital agency services (the “Services”) as set forth in the attached, incorporated and executed Proposal and SOWs (hereinafter, “Attachments”). Agency shall render such services and deliver the required deliverables (“Deliverables”) in accordance with the timetable and milestones set forth in the Attachments. In the event Agency anticipates at any time that it will not reach one or more milestones within the prescribed timetables, Agency shall immediately so inform Client by written notice, submit proposed revisions to the timetable and milestones that reflect Agency’s best estimates of what can realistically be achieved, and continue to work under the original timetable and milestones until otherwise directed by Client.

 

1.2       Change Requests:  If either party requests changes or expansions to the Services, Client may request that Agency prepare a written change request outlining the scope, timetable, Deliverables and fees associated with the proposed change, and the parties will discuss the change request in good faith.  The parties are only bound by such changes as are mutually agreed upon and set forth in a new Attachment.

 

1.3       Quality of Work:  All work shall be performed in a professional manner by employees and independent contractors of Agency having a level of skill and experience in the area commensurate with the requirements of the Attachments and Services to be performed.

 

1.4       Cooperation; Necessary Access.  Client acknowledges that Agency’s ability to provide the Services is dependent upon Client’s full and timely cooperation (which Client agrees to provide), as well as the accuracy and completeness of any information, data and materials that Client provides to Agency.  Client will provide all necessary access and make available to Agency all applicable workspace, network access, software, hardware, data, documentation, content and information reasonably required by Agency to complete the Services.  If Client fails to fully and timely cooperate or provide information and data to Agency as reasonably requested, Agency may revise or delay the applicable schedule or timing on any Attachments related to the impacted Services.  Such delay or revision shall not be considered a breach by Agency of this Agreement or the applicable Attachments.

 

1.5       Project Manager.  For each Attachment, each party will designate an account manager (point of contact) who will have authority to make decisions and will be reasonably accessible to the other party to facilitate delivery of the Deliverables and performance of the Services in accordance with the schedule or timing as set forth on any applicable Attachment.

 

SECTION 2.  TERM OF AGREEMENT

 

2.1       Term.  This Agreement shall commence on the Effective Date, and unless terminated earlier pursuant to the terms of this Agreement. The term of this Agreement shall run as specifically set forth on the signature page of the Proposal, unless extended by written mutual agreement of the parties (“Term”).

 

2.2.      Termination Without Cause. Agency may, at its sole option, terminate any or all outstanding Services or this Agreement, or any portion thereof, upon providing at least sixty (60) days prior written notice to Client.  Upon ninety (90) days after the Effective Date of this Agreement, Client may, at its sole option, terminate this Agreement by providing Agency at least fifteen (15) days prior written notice to Agency.

 

2.3.      Termination With Cause.  If either party defaults in the performance of its obligations hereunder and such breach is not cured within thirty (30) days after receipt of notice specifying the nature of the default, the complaining party shall have the right, at its option, to immediately terminate this Agreement at any time subsequent to the thirty (30) day cure period by providing notice to the defaulting party; provided, however, that the cure period for any default with respect to Client’s Fees/Expenses obligations shall be five (5) business days.   For clarity purposes, in the event Client fails to meet the cure period with respect to payment obligations, Agency shall have the right to immediately cease the Services, including but not limited to running ad campaigns.

 

2.4       Effect of Termination.  Upon termination of this Agreement: (i) Agency, upon Client’s request, shall promptly return to Client all copies of Client Materials in Agency's possession or control belonging to and paid for by Client; (ii) Client shall only be required to pay Agency for the undisputed costs of completed Services as specified in Section 3.1 below and for undisputed, non-refundable expenses incurred prior to termination that are eligible for reimbursement under Section 3.1 below; (iii) upon Agency’s receipt of such final payment, Agency shall promptly deliver all Client Materials and Deliverables pursuant to this Agreement; and (iv) in the event Client fails to provide Agency necessary approvals or to respond to Agency’s reasonable requests to complete any outstanding prepaid Services within fifteen (15) days such request or approval has been sent to Client, Agency shall have no further obligation to complete such outstanding Services, and Client will not be entitled to receive a refund in such instances. The provisions of this Section 2 shall survive any termination or expiration of this Agreement.

 

SECTION 3.  PAYMENT OF FEES AND REIMBURSEABLE EXPENSES

 

  • Fees/Expenses: In return for the Services provided by Agency to Client, Client agrees to pay the amounts specified in the applicable Attachments (the “Fees”). Once paid, all Fees are non-refundable. Agency may invoice Client for the Fees specified for the applicable Attachments as agreed to by the parties or upon completion by Agency of such Services. In addition to the Fees, Client agrees to reimburse Agency for all reasonable, documented pre-approved out-of-pocket expenses incurred by Agency in providing the Services. Upon credit approval, Client shall pay to Agency all undisputed amounts within thirty (30) days of the date Client receives an invoice for such amounts. Interest shall accrue at a rate of one percent (1%) per month for any undisputed amount not received after thirty (30) days from date of invoice receipt by Client, and such late payment shall be subject to the termination provisions set forth in section 2.3 of this Agreement.

 

3.2       Taxes.  If any taxes are required by law to be charged, levied or assessed on the Services provided hereunder, Client agrees to pay such taxes in addition to the fees payable under the relevant Attachments.  Notwithstanding the foregoing, each party is responsible for any taxes based on its own income.

 

3.3       Third Party Software License Fees.  The Services may require a license to software from third parties (“Third Party Software”).  Unless those costs are included in the Services, Agency will invoice Client for the costs related to the Third Party Software.  If any third party requires that Client sign a license agreement, Client agrees to do so as part of this Agreement.  In any event, Client agrees to comply with the terms and conditions of use of any Third Party Software.

 

3.4       Fee Increases.  Recurring fees are not subject to change during the first year of this Agreement or the relevant Attachments. Thereafter, Agency may increase the fee for Services on 30 days’ notice to the Client.

 

SECTION 4. Agency PERSONNEL

 

4.1   Agency shall bear sole responsibility for payment of compensation to its employees and independent contractors. By entering into this Agreement, the parties intend to create the relationship of independent contractor between them. Agency, and its employees and independent contractors, are not the employees, agents, partners, or joint venture of Client. Client will not provide any benefits to Agency or its employees or independent contractors. Agency and its employees and independent contractors shall not be entitled to participate in or receive any benefits applicable to employees of Client.  Agency shall, subject to the terms of this Agreement, have the right to contract for similar services with other individuals and businesses. Client agrees that it shall have no right to control or direct the manner or means by which Agency accomplishes the results of the Services rendered hereunder. Agency shall obtain all necessary permits and licenses for the operation of its business. Agency shall pay all taxes, including payroll taxes, insurance and contributions for social security and unemployment, which are measured by wages, salaries, or other remunerations, paid to its employees and independent contractors, levied under existing laws, rules, or regulations. To the extent applicable, Agency shall also pay self-employment taxes with respect to all amounts paid by Client to Agency hereunder.

 

SECTION 5.  INTELLECTUAL PROPERTY RIGHTS

 

5.1       Client Intellectual Property and Materials:  Client hereby agrees and commits to provide any and all materials required in the Attachments in order for Agency to provide Services set forth herein (“Client Materials”). Client hereby represents and warrants to Agency that Client owns all rights, title and interest in and to the Client Materials, or has received the necessary licenses and permission from the rightful owner(s) if not owned by Client in order to grant the license or sublicense to Agency hereunder. As such, Client hereby grants Agency a limited, non-transferable, non-sub licensable limited license to use the Client Materials in order to perform the Services as set forth hereunder.

 

5.2.      Agency Intellectual Property. Client acknowledges that Agency has developed and continues to develop, improve and modify certain proprietary tools, software, programs, utilities, processes, methodologies, documents, and strategies (“Agency Intellectual Property”) that it uses and re-uses in providing services to its clients.  Agency retains all rights in Agency Intellectual Property, and nothing in this Agreement will be deemed to grant any rights to Client or restrict Agency’s rights in any Agency Intellectual Property. Notwithstanding the foregoing, Agency grants Client during the Term of this Agreement a non-transferable, non-sub licensable limited license to Agency Intellectual Property for Client’s internal business purposes as necessary for Client to use any Services provided by Agency hereunder.  No additional license or rights to the Agency Intellectual Property is granted for use by Client or for the benefit of other parties.

 

5.3  All rights, titles and interests in and to all the Deliverables specified in any applicable Attachments, including all rights in copyrights and trademark rights thereto, specifically created for Client by Agency, (excluding raw footage, third party stock images, project files, or Agency Intellectual Property), (collectively, “Client Intellectual Property”) shall be held by Client, and all Client Intellectual Property shall, to the extent possible, be considered works made by Agency for hire for the benefit of Client. In the event the Client Intellectual Property does not constitute work made by Agency for hire for the benefit of Client under applicable law, or in the event Agency otherwise retains any rights to any Client Intellectual Property, Agency agrees to assign, and upon creation thereof hereby automatically assigns, all rights, titles, and interests in and to such Client Intellectual Property to Client, without further consideration. Agency agrees to execute any documents of assignment or registration of copyright requested by Client respecting any and all Client Intellectual Property.

5.4   Notwithstanding the above, neither party shall be prevented from making use of know-how and principles learned or experience gained of a non-proprietary and non-confidential nature.

5.5   The rights and obligations set forth in this Section 5 shall survive the termination of this Agreement.

 

SECTION 6.  CONFIDENTIAL INFORMATION

 

6.1   Each party acknowledges that in order to perform the Services called for in this Agreement, it shall be necessary for each party to disclose to the other party certain trade secret(s) or other confidential and proprietary information, including confidential and proprietary information that has been developed by the other party at great expense and that required considerable effort of skilled professionals (“Confidential Information”).  As used herein, the term Confidential Information shall mean any fees paid hereunder, any scientific or technical data, marketing or strategic business information, design, process, procedure, formula, methodology, improvement, or other information a party deems confidential that is commercially valuable to the holding party and not generally known in the industry. All information data provided by the participants or Client and all survey reports and results are hereby deemed Client Confidential Information. Notwithstanding the foregoing, Agency shall have the right to share, publish, report and use results and data derived from the Services Agency is providing to Client hereunder,  so long as such results and data is in the aggregate and anonymous form (“Aggregate Data”). Client grants Agency a license to use the Aggregate Data in perpetuity and share the Aggregate Data with third party service providers. Confidential Information shall not include information which:

 

  1. is independently developed by either party without the use or reference to the other party’s Confidential Information;
  2. can be shown by documentation to have been known by a party at the time of receipt from the other party;
  3. is or becomes publicly available other than through a breach of this Agreement; or
  4. is received from a third party without any obligation of confidentiality as long as such third party did not acquire or disclose such information by a wrongful or tortuous act;

 

Each party agrees that it shall only use the Confidential Information of the other party in its pursuance of its business relationship with the other party. Each party agrees that it will not disclose the Confidential Information of the other party to any third party except as allowed under this Section 6.1.  Each party will restrict the possession, knowledge and use of the other party’s Confidential Information to each of its employees and contractors who (i) has a need to know the specific Confidential Information in connection with the purposes set forth in this Section 6.1, and (ii) has entered into a written nondisclosure, so long as it obligates them to protect the Confidential Information to the same or greater degree as required under this Section 6.1. Both parties will ensure that its employees and contractors comply with the term of this Section 6.1 and their respective nondisclosure agreements.  Each party may disclose the other party’s Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it, on the condition that the party disclosing the information (i) gives the other party prior written notice sufficient to allow that party to seek a protective order or other appropriate remedy, (ii) discloses only such information as is required by the governmental entity, and (iii) and uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed

6.2   The obligations set forth in this Section 6 shall survive termination of this Agreement and continue for so long as the relevant information remains proprietary or Confidential Information.

 

SECTION 7.  REPRESENTATIONS AND WARRANTIES

 

7.1   Agency represents and warrants that:

 

  1. Agency shall provide the Services to Client in accordance with the terms set forth in this Agreement.
  2. Agency’s performance of the Services shall not violate (i) any applicable federal, state and local government laws, regulations; or (ii) the terms of any contracts with third parties.
  3. The Services shall be provided in a professional and worker-like manner and performed by properly-trained and competent personnel who hold current licenses or certifications if required to be so licensed or certified by applicable law.

 

  • Client represents and warrants that:

 

  1. Any Client Intellectual Property (including Client Materials and customer lists) provided by Client to Agency to perform the Services does not and shall not violate any applicable law, rule, or regulations or any contracts with third parties, including but not limited to any third-party intellectual property rights including patent, trademark, copyright, trade secret, and similar rights;
  2. If applicable, it shall comply with any and all requirements of the California Consumer Protection Act and California Privacy Rights Act, and any and all other applicable privacy laws and regulations;
  3. It shall comply with all rules, regulations, policies, and laws applicable to the type of Services Agency is providing Client under this Agreement, including but not limited to Digital Advertising Alliance (“DAA”) Self-Regulatory Principles, anti-spam, truth-in-advertising laws, US export control laws and anti-bribery laws.
  4. If applicable and upon request, it shall provide Agency a link to its current privacy policy;
  5. It shall pay Agency for the Services provided to it by Agency in accordance with the terms set forth in this Agreement;
  6. It has the right and authority to enter into this Agreement.
  7. It will, where applicable, at a minimum, maintain on its website a privacy policy that includes: (i) a clear and conspicuous notification to all customers that any data will be collected and used for targeted online advertising; (ii) notice that third parties may use cookies, web beacons, and similar technologies to collect and receive information from Client’s website; (iii) notice that Client may use any information collected to provide measurement services and target ads and may share the information with Agency in connection with services Agency is providing to Client; and (iv) a notification and active link allowing for any consumer to opt-out of the collection and use of the information for ad targeting; and
  8. It will abide by the terms of the privacy policy posted to its website.

 

SECTION 8.  INDEMNIFICATION AND EXCLUSION OF DAMAGES

 

8.1   Agency hereby agrees to indemnify and hold Client harmless from and against any and all third party claims, demands, and actions, and any liabilities, damages, or expenses resulting therefrom, including court costs and reasonable attorney fees, arising out of or relating to any breach of the obligations, representations and warranties made by Agency as set forth herein. The obligations under this Section 8.1 shall survive the termination of this Agreement for any reason. Client agrees to give Agency prompt notice of any such claim, demand, or action and shall, to the extent the party is not adversely affected, cooperate fully with Agency in defense and settlement thereof.

 

8.2   Client hereby agrees to indemnify and hold Agency harmless from and against any and all claims, demands, and actions, and any liabilities, damages, or expenses resulting therefrom, including court costs and reasonable attorney fees, arising out of or relating to any breach of the obligations, representations and warranties made by Client as set forth in the Agreement.  The obligations under this Section 8.2 shall survive the termination of the Agreement for any reason.  Agency agrees to give Client prompt notice of any such claim, demand, or action and shall, to the extent the party is not adversely affected, cooperate fully with Client in defense and settlement thereof.

 

8.3  EXCEPT FOR THE EXPRESS REPRESENTATION AND WARRANTY SET FORTH IN SECTION 7 HEREOF, Agency MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE, OR OTHERWISE, UNDER THIS AGREEMENT AND ADVERTISER SPECIFICALLY WAIVES ANY CLAIM IT HAS OR MAY HAVE IN THE FUTURE AGAINST Agency FOR BREACH OF ANY TYPE OF WARRANTY, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Agency DOES NOT GUARANTEE ANY SPECIFIC RESULTS OF THE SERVICES PROVIDED HEREUNDER WILL BE ERROR FREE, UNINTERRUPTED OR NONINFRINGING.

 

8.4  NOTWITHSTANDING THE FOREGOING, NEITHER PARTY SHALL BE LIABLE  FOR ANY CONSEQUENTIAL, INCIDENTAL,  SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES WHETHER ARISING UNDER CONTRACT, WARRANTY, OR TORT  (INCLUDING  NEGLIGENCE  OR STRICT  LIABILITY) OR ANY OTHER THEORY OF LIABILITY, REGARDLESS  OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, Agency’S TOTAL LIAIBLITY TO CLIENT HEREUNDER, WHETHER ARISING OUT OF CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE GREATER OF THE TOTAL AMOUNT PAID BY CLIENT TO Agency UNDER AN APPLICABLE ATTACHMENT, OR TO THE MAXIMUM EXTENT OF Agency’S APPLICABLE INSURANCE COVERAGE.

 

8.5      No Equitable Relief. Notwithstanding any other provision to the contrary contained in this Agreement, Client acknowledges and agrees that (a) monetary damages at law are a fully adequate remedy to compensate Client for any breach or threatened breach of this Agreement by Agency, and (b) an action at law for monetary damages is Client's sole and exclusive remedy for any such breach. No breach by Agency of this Agreement will entitle Client to equitable relief, including specific performance, injunctive relief, rescission or any other form of equitable remedy. Without limiting the generality of the immediately preceding two sentences, Client shall not seek equitable relief to rescind this Agreement or any grant of rights to Agency hereunder or seek injunctive relief to enjoin or otherwise restrain or limit the Services, or any rights therein.

 

SECTION 9.  General Data Privacy Regulation (“GDPR”)/European Economic Area (“EEA”)

 

9.1  Client hereby acknowledges that Agency does not provide Services to any natural person located within the EEA. Client represents and warrants it shall not transmit, transfer, or otherwise make available to Agency, any personal data as defined in the GDPR, which is identified or identifiable to any natural person, either directly or indirectly, who is located within the EEA. Client represents and warrants to Agency that in the event Client does collect any personal data from any natural person located within the EEA, that Client is solely responsible for and shall be compliant with the GDPR requirements during the Term of this Agreement.

 

10. MISCELLANEOUS

10.1   Agency shall have the right to identify the Client as a customer and showcase the Client Intellectual Property created by Agency hereunder as examples of Agency’s work, on Agency’s website, social media pages, and in marketing materials, but Client shall have the ability to have its name and Client Intellectual Property removed from Agency’s website, social media pages, and marketing materials any time for reasonable cause.

 

10.2 Neither party shall assign or transfer this Agreement without the prior written consent of the other party.  Notwithstanding the foregoing, Agency may assign this Agreement in whole or in part to a present or future wholly-owned subsidiary without obtaining Client’s express written consent.

 

10.3  This Agreement shall be governed by and interpreted under the laws of the State of Ohio without regard to its or any other jurisdiction’s conflict of laws provisions. The parties hereby expressly consent and submit to the exclusive jurisdiction of either the federal or state district courts located in Ohio.

 

10.4  All remedies available  to either  party for one or more  breaches by the other  party  are and  shall be deemed cumulative and may be exercised separately  or  concurrently  without  waiver of any other remedies.  The failure of either party to act in a breach of this Agreement by the other shall  not be deemed a  waiver  of such  breach  or a  waiver  of  future breaches,  unless such waiver  shall be in writing and signed by the party against whom enforcement is sought.

 

10.5 All notices required or permitted hereunder shall be in writing addressed to the respective parties as set forth in the Attachments, unless another address shall have been designated, and shall be delivered by email with return receipt requested, by hand or by registered or certified mail, postage prepaid.

 

10.6  The prevailing party in any legal action brought by one party against the other arising out of this Agreement shall be entitled, in addition to other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys’ fees.

 

10.7 Agency will not unlawfully discriminate against any individual on the basis of age, race, color, sex, gender, sexual orientation, religion, national origin, citizenship, genetics, handicap, military or veteran status, or any other characteristic protected by law in providing services to Client.

 

10.8 In the event Agency or Client is unable to perform, with reasonable effort, any of its obligations under this Agreement due to any of the following events – war; natural or man-made disasters; actions, advisories or decrees of governmental bodies; telecommunications carriers and other suppliers; natural emergencies (whether declared or undeclared); hostility; public disturbances; strikes, boycotts or other labor disputes or work stoppages; failure or interruption of transportation or other utilities; epidemics; pandemics; or terrorist activities -- then the parties’ obligations under this Agreement shall be suspended until performance becomes possible again with reasonable effort assuming Services are still required and timely under the Agreement.

 

10.9 This Agreement constitutes the entire agreement of the parties hereto and supersedes all prior representations, proposals, discussions, and communications, whether oral or in writing. This Agreement may be modified or updated at any time by Agency and in such instances, Agency shall provide you with notice of such modification or updates.

 

10.10 The parties covenant and agree that, subsequent to the Effective Date and without any additional consideration, each of the parties shall execute and deliver any further legal instruments and perform any acts which are or may become necessary to effectuate the purposes of this Agreement.

 

10.11 During the Term of this Agreement and for a period of one (1) year after any termination or expiration hereof, neither party shall directly or indirectly solicit for employment, employ or retain as an independent contractor any of the other party’s personnel who participated in the procurement or providing of any Services under this Agreement.

 

10.12 In the event of a conflict or an inconsistency between these Terms and Conditions and any Attachments agreed to by the parties, the language in the Attachments shall govern.

 

10.13  Each party shall, during the Term of this Agreement, maintain adequate insurance levels to protect against liability arising from its own negligence or misconduct in connection with its obligations, representations and warranties as set forth herein.

 

10.14 . If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision, or the applicable part of it, shall be severed from the remainder of this Agreement, which will otherwise remain in full force and effect.