Terms and Conditions
Last Updated April-21-2021
These Terms and Conditions (the “Terms and Conditions”) are part of and incorporated into any proposal or ordering document (each, an “Order”) by and between Frenik LLC, a Delaware limited liability company d/b/ Frenik Marketing Group (“FMG”) and the “Client” identified in such Order. Capitalized terms used and not otherwise defined herein will have the same meanings given for those terms in the Order.
- Provision of Services. Subject to the terms and conditions of this Agreement, FMG will perform the Service(s) and provide the deliverables identified in the Order available to Client during the Term of such Agreement. Except as otherwise provided on the Order or this Agreement, the Order is non-cancellable by Client and will be subject to the terms and conditions of this Agreement. If required as part of Client’s internal procedures, the Order may be supplemented by a purchase order issued by Client, but in no event will a Client purchase order modify any of the pricing, deliverables or terms set forth in the Order or this Agreement.
- Client Responsibilities.
- Client will designate a representative (the “Client Manager”) who will have overall responsibility for managing and coordinating Client’s obligations hereunder and who has the authority to act for Client in connection with this Agreement. The Client Manager will serve as FMG’s initial point of contact for the resolution of issues in connection herewith, must be available to FMG during the term of this Agreement and have authority to schedule performance of the Services and address any issues that may arise.
- Client agrees that it will cooperate with and assist FMG in the performance of the services contemplated by this Agreement and will provide such Client resources as FMG may reasonably request in connection with FMG’s performance of the Services hereunder, including, without limitation, information and data reasonably necessary for FMG to perform the Services and access to personnel of Client who are knowledgeable regarding the Services and to Client facilities and computer systems (the “Client System”) as reasonably necessary. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT ACKNOWLEDGES THAT ITS FAILURE TO RESPOND TO ANY REQUEST FROM FMG WITH RESPECT TO THE SERVICES WITHIN SEVEN (7) DAYS (CONSECUTIVE) FROM THE DATE OF REQUEST SHALL BE DEEMED TO BE A MATERIAL BREACH OF THE AGREEMENT ENTITLING FMG TO TERMINATE THIS AGREEMENT.
- Client acknowledges that if it fails to provide assistance and perform or fulfill its obligations in accordance with this Agreement, FMG’s ability to provide the Services and meet the schedule and at the fees set forth in the Order may be adversely affected. If any delays or changes in the Services occur as a result of any incorrect information, incorrect assumption or failure of Client to perform or fulfill its obligations in connection with the Order, the performance schedule and fees for the applicable project may be extended. FMG will have no liability or responsibility for any costs or expenses resulting from such delays.
- Fees and Payment Terms.
- If the Services under the Order are to be performed on a fixed-fee basis, FMG will invoice Client in accordance with the schedule stated in the Order, and if no schedule is stated in the SOW, FMG will invoice Client upon substantial completion of the Services. If the Services under an Order are to be performed on a time-and-materials basis, FMG will invoice Client periodically, in arrears, and FMG will provide reasonable documentation for the invoiced amount upon Client’s request therefor. In addition to the fees payable to FMG under an Order, Client will reimburse FMG for all reasonable and documented out-of-pocket expenses incurred in rendering the Services, including, without limitation advertising expenditures, travel expenses (including transportation, lodging and meal expenses) and any tangible material acquired by FMG for Client’s benefit that is delivered to Client. FMG will invoice Client for all such expenses on a periodic basis. Client acknowledges that any estimates of fees or hours to complete the Services set forth in a SOW are provided for convenience only and are approximations of the anticipated amount of fees and time needed to complete such Services. The actual number of hours may vary and does not necessarily reflect the number of hours that will be required to perform such Services.
- All fees and charges are due within seven (7) days after Client’s receipt of invoice therefor. Any invoiced charges not received when due will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. In addition to the foregoing and without prejudice to FMG’s other rights and remedies under this Agreement, at law or equity, if Client fails to make any payment as and when due, FMG may, at FMG’s sole discretion do any one or more of the following: (i) suspend the provision of Services upon written notice to Client; (ii) terminate this Agreement pursuant to its terms; (iii) in whole or in part suspend providing Services to Client until payment in full has been made; or (iv) require other assurances to secure Client’s payment obligations hereunder.
- Client agrees to pay all reasonable and actual attorneys’ fees incurred by FMG in connection with the collection of any past due amount owed to FMG under this Agreement. Client shall be liable for all taxes and regulatory fees of any kind imposed on any products or services provided under this Agreement including, without limitation, any and all sales tax, other than taxes based solely on FMG’s income, all of which will be paid by FMG.
- Termination. This Agreement may be terminated as follows: (a) following the Minimum Term set forth in the Order (or, if no such Minimum Term is set forth, six (6) months from the effective date of such Order), by either party, with or without cause upon 60 days prior notice to the other party; (b) by FMG immediately upon Client’s material breach of the terms of this Agreement and failure to cure such breach within 5 days after receiving notice of such nonpayment; or (c) automatically, upon the satisfaction of all obligations of either party under the Agreement, whichever occurs first. Termination of Agreement shall not relieve Client of any payment obligation that accrued prior to the effective date of such termination, and Client shall be responsible for payment of all amounts with respect to Services performed by FMG through such date. In addition to the foregoing, in the event of any termination by FMG under Section 3(b), above, then Client shall be responsible for payment of all (i) estimated fees quoted by FMG in the Order for Services scheduled to be performed by FMG from and after the effective termination date through the remainder of the Minimum Term (or, if the Minimum Term has expired, the sixty (60) day period immediately following the effective termination date). The definitions and terms of Sections 3(c), 4-12 of these Terms and Conditions shall survive any expiration or termination of this Agreement.
- Intellectual Property Rights.
- As used herein:
- “Work Product” means all inventions, improvements, modifications, enhancements, derivatives, compositions, discoveries, designs, drawings, data, and information that are (x) developed, discovered, invented, authored or first reduced to practice by FMG, alone or jointly with Client, and solely at Client’s expense in performing the Services; and (y) related directly to Client’s business. Work Product shall not include any FMG IP or Client IP.
- “FMG IP” means all intellectual property in which FMG or any of its licensors own or may acquire or assert any proprietary right anywhere in the world, and which was acquired, licensed, developed, discovered, invented, authored or first reduced to practice by FMG, alone or jointly with others, either: (x) prior to the effective date of this Agreement; or (y) outside of the scope of performing Services under this Agreement.
- “Client IP” means all intellectual property in which Client or any of its licensors own or may acquire or assert any proprietary right anywhere in the world, and which is provided by Client to FMG in connection with FMG’s performance of the Services.
- Subject to the terms and conditions of this Agreement and Client’s payment of all fees as required herein, FMG (i) agrees that any and all original works of authorship fixed in any tangible medium of expression, including without limitation, all documentation, creative works, know-how, and information, included in the Work Product shall be considered “work for hire” as defined in Public Law 94-553, the Copyright Revision Act of 1976, granting Client ownership to the work and rights comprised therein; and (ii) shall, and hereby does, transfer, convey and assign solely and irrevocably, perpetually and exclusively to Client, all right, title and interest in and to the Work Product, including, without limitation, any copyrights, patent rights and other intellectual property and proprietary rights therein and thereto.
- Except as otherwise agreed in the Order, (i) to the extent that any FMG IP is necessary for the exploitation of any of the Work Product by Client, FMG grants to Client a non-exclusive, non-transferable limited license, without right of sublicense, to use (in object code format only, if applicable) the FMG IP solely in connection with such Work Product; and (ii) Client grants to FMG during the Term of this Agreement a non-exclusive, non-transferable limited license, without right of sublicense, to use, copy, display, modify, and create derivative works from the Client IP solely in connection with and as necessary to perform the Services. Except as expressly set forth in this Agreement, each party and its respective licensors shall retain all worldwide right, title and interest in and to such party’s Confidential Information and intellectual property that may be provided by such party hereunder.
- Warranties; Disclaimer. Each party warrants and represents that: (i) it has the legal right to enter into this Agreement and perform its obligations hereunder; and (ii) the performance of its obligations hereunder will not violate any applicable U.S. laws or regulations applicable to such party or cause a breach of any agreements with any third parties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 6, THE SERVICES AND DELIVERABLES ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS, AND FMG AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT THERETO, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. FMG DOES NOT WARRANT OR GUARANTEE ANY SPECIFIC RESULTS FROM CLIENT’S USE OF THE SERVICES OR THE DELIVERABLES. AS BETWEEN THE PARTIES, CLIENT SHALL BE SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY OF ALL CLIENT DATA PROVIDED BY CLIENT IN CONNECTION WITH THE SERVICES.
- Confidential Information.
- Each party acknowledges that it will have access to certain “Confidential Information” of the other party, which term means any and all proprietary and confidential data or information of a party disclosing information hereunder or any of its affiliates that is of tangible or intangible value to the disclosing party or its affiliates and is not public information or is not generally known or available to the disclosing party’s competitors but is known only to the disclosing party and its employees, independent contractors or agents to whom it must be confided in order to apply it to the uses intended, but does not include data or information that is available to the public or in the public domain at the time of such disclosure without breach of this Agreement or other applicable law or that has been independently developed and disclosed by others not subject to an obligation of confidentiality, The Confidential Information will expressly include, but not be limited to, FMG Technology (with respect to FMG) and the Client Data (with respect to Client). Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to such party’s employees, attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the other party. Each party will protect the confidentiality of the Confidential Information of the other party by employing the same measures (but in no event less than reasonable measures) as it takes to protect its own Confidential Information. The obligations of this Section 7 will last during and after the term of this Agreement.
- The receiving party may disclose Confidential Information pursuant to the requirements of a validly issued subpoena, governmental agency or by operation of law, provided that it gives the disclosing party, when practical and permitted, reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
- In the event of a violation or threat of violation by a party, directly or indirectly, of the terms of Section 7(a), the party who would be harmed by such violation, will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction. Each party acknowledges that a violation of this section would cause irreparable harm and that all other remedies are inadequate.
- Client acknowledges that nothing in this Agreement (i) prohibits FMG from developing, or having developed for it, products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in Client’s Confidential Information, provided that FMG complies with the terms of Section 7(a); (ii) prohibits FMG from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of FMG; or (iii) prevents FMG from disclosing that Client is a customer of FMG, and Client specifically agrees and acknowledges that FMG may use and display Client’s name and (if applicable) logo in FMG’s client list. Further, Client agrees and acknowledges that FMG may reproduce, use and display (in any media) portions of the Work Product in FMG’s portfolio for advertising and marketing purposes only.
- Limitation of Liability; Force Majeure. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FMG’s TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO FMG UNDER THE SOW WITH RESPECT TO WHICH SUCH LIABILITY ARISES. IN NO EVENT WILL FMG BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST DATA AND LOST PROFITS. CLIENT ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT FMG WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. Neither party will be liable for and will not be responsible to the other for any delay or failure to perform under this Agreement if such delay or failure results from any act or cause beyond the reasonable control of the affected party. If either party is unable to perform under this Agreement because of the occurrence of an event of force majeure lasting more than thirty (30) days, then the other party may terminate this Agreement immediately upon written notice to the other party.
- Non-Solicitation of Employees. During the Term hereof, and for a period of two (2) years thereafter, FMG covenants and agrees not to solicit, divert, hire or attempt to do any of the foregoing, any employee of FMG with whom Client had direct and substantial contacts during the term of this Agreement; provided, however, that “actively solicit, divert, or attempt to hire” will not be deemed to include general recruitment advertisements or postings addressed to the general public.
- Non-Disparagement. During the term of this Agreement and for the two (2) year period following the termination or expiration of this Agreement, neither party will make or publish any negative, critical, disparaging, false or misleading representations, statements (whether written or oral) about the other party or any of its affiliates, owners, directors, members, partners, customers, clients, employees, products or services, in any manner or medium whatsoever; provided, however, that the foregoing shall not prohibit either party from testifying truthfully in any judicial or regulatory action, proceeding or other matter.
- Governing Law; Venue. This Agreement and all obligations of the parties hereunder will be interpreted, construed, and enforced in accordance with the laws of the State of Georgia, without regard to any conflict of laws rules or analyses. Any action or proceeding arising from or relating to this Agreement must be brought in a state or federal court having jurisdiction in Gwinnett County, Georgia, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and agrees to waive any defenses to venue and jurisdiction including forum non conveniens. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
- General. The headings in this Agreement are provided for convenience only and will not affect its construction or interpretation. The parties and their respective personnel are and will be independent contractors, and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. This Agreement may only be amended in writing by the mutual consent of the parties (including, without limitation, pursuant to a change order). No waiver of any provision hereof or of any right or remedy hereunder will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder will constitute a waiver of any other right or remedy, or future exercise thereof. If any provision of this Agreement is determined to be invalid under any applicable law, it is to that extent to be deemed omitted, and the balance of the Agreement will remain enforceable. There are no third party beneficiaries to this Agreement. All notices will be in writing and will be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by e-mail (with a copy of such transmission promptly deposited in first class U.S. mail). All notices will be directed to the parties at the respective addresses given below such party’s signature hereto or to such other address as either party may, from time to time, designate by notice to the other party. Time is of the essence hereof.