CONTRACT TERMS
NOW, THEREFORE, in consideration of the respective covenants and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
1. Brandshare shall provide the Services as detailed on each Schedule, by the means outlined on each Schedule hereto. The Services shall begin and complete on or about the dates listed on each Schedule. Brandshare shall provide the Services by working with e-commerce retailers, production vendors, shipping vendors, brand ambassadors, distribution/activation partners (collectively, as applicable, the "Brandshare Partners")."
2. In consideration of the Services rendered by Brandshare, Company will pay Brandshare the amounts set forth in the Services Provided Schedule for the Services outlined in the Services Provided Schedule. Brandshare will invoice Company on the date set forth in Services Provided Schedule and Company shall pay such invoice on the date set forth in Services Provided Schedule.
a. Should the quoted and agreed to Service specifications change for any Schedule, Company agrees to be financially responsible for any additional costs due to the Company requested change(s). Company will confirm the new specifications and their responsibility for the additional costs in an addendum to this Agreement.
b. The fees and other amounts payable pursuant to this Agreement are exclusive of, and Company shall pay, all federal, state, local, municipal or other sales, use, transfer, excise, property and other taxes and duties imposed with respect to the delivery of the Services or any Deliverable to Company, except for taxes imposed on Brandshare with respect to its net income or gross receipts and Brandshare’s employment-related taxes. Company shall obtain and provide to Brandshare any certificate of exemption or similar document required to exempt any transaction under this Agreement from sales tax, use tax or other tax liability.
3. Representations and Warranties.
a. Each of the Parties represents and warrants that (a) it is duly organized and a validly existing entity in good standing under the laws of a State within the United States of America, (b) it has full power and authority to enter into this Agreement and perform its obligations hereunder and has taken all action necessary to execute and deliver this Agreement, and (c) it will perform its obligations hereunder in compliance with all applicable laws.
b. Brandshare further represents and warrants that (i) the Services shall be performed by qualified personnel in a professional and workmanlike manner, in accordance with the industry standards, (ii) it is subject to no obligation that will in any way prevent its performance of the Services, and (iii) no Brandshare Materials (defined in Section 8) (other than any information, item or material received from or on behalf of Company) will be false or misleading and no Brandshare Materials (other than any information, item or material received from or on behalf of Company) infringe or will infringe on the rights of any other person or Party.
c. Company hereby represents and warrants that (i) no Products or any other information, item or material received from or on behalf of Company (other than any Brandshare Materials) will be false or misleading, (ii) no Products (other than any Brandshare Materials) infringe or will infringe on the rights of any other person or Party and (iii) each Product and any other information, item or material received from or on behalf of Company is in compliance with all applicable laws and regulations. For the purpose of this Agreement “Product(s)” shall have the meaning ascribed to it in each Schedule.
4. Indemnification and Limitations.
a. Each party (as such, the “indemnifying party”) shall indemnify and hold the other (the “indemnified party”) harmless against all costs, damages, losses and expenses arising out of any allegation, claim or lawsuit by a third party (a “Claim”) to the extent such Claim relates to or arises out of any actual or alleged breach of any representation, warranty, or covenant of the indemnifying party hereunder or any actual or alleged a violation by the indemnifying party of any law, regulation or right held by a third party. The indemnifying party, in connection with any Claim, will pay the indemnified party’s reasonable outside counsel attorneys’ fees and court costs incurred in connection with the action. The obligations set forth in this Section shall apply only if (i) the indemnified party notifies the indemnifying party in writing of a Claim promptly upon learning of or receiving the same or any such failure to promptly notify the indemnifying party causes no material prejudice to the indemnifying party; (ii) the indemnified party provides the indemnifying party with reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense, for the defense and settlement, if applicable, of any Claim; and (iii) the indemnified party provides the indemnifying party the exclusive right to control and the authority to settle any claim, provided, however, that (X) the indemnified party shall have the right to participate in the matter at its own expense and (Y) the indemnifying party will not settle any Claim without obtaining a full and unconditional release of the indemnified party and any applicable related persons from all liabilities in respect of such Claim.
b. Except for liability arising under Sections 4.a or 9, neither Party shall be liable to the other Party for any indirect, consequential, incidental, special, punitive or exemplary damages, regardless of amount and whether or not such Party has been advised of the possibility of such damage. Except for liability arising under Sections 4.a or 9, or in the case of any Party’s gross negligence or willful misconduct, in no event shall either Party be liable in the aggregate for any claims or damages in any amount exceeding the amount paid by Company to Brandshare during the twelve (12) month period preceding the date the cause of action giving rise to the liability arose, less in all cases the aggregate of any and all amounts paid by such Party on account of previous events of liability. Notwithstanding the foregoing, neither Party shall be liable under this Agreement for the negligent acts or omissions of the other Party or any third party not under the control of the Party, including any Brandshare Partner.
5. Company hereby grants to Brandshare revocable permission to use the Company name, trademark and logotype only to the extent necessary to carry out Brandshare's responsibilities under each Schedule and as pre-approved in writing by Company. The rights granted hereunder will terminate immediately upon termination, expiration and/or completion of each Schedule. Brandshare acknowledges that it has no ownership interest or rights in such name, trademark and logotype and its use hereunder does not confer upon Brandshare any interest in such items other than the right of usage pursuant to, and in accordance with, the terms of this Agreement. Company understands and accepts that once a campaign enters the public sphere via e-commerce, shopper, digital, subscription box, in-store, college or other designated Brandshare distribution channel, Brandshare may publicize its part in the distribution of said campaign in the form of press releases, web site postings, blog announcements, corporate social pages and other public communication venues. Brandshare in turn agrees not to release sensitive financial or contractual data as it relates to each campaign and/or this Agreement.
6. The Parties agree to cooperate with each other in every reasonable manner to deal appropriately with any consumer complaints which may arise from the Services. Without limiting the generality of the foregoing, each of the Parties shall, when reasonably requested by the other Party in writing, undertake such factual investigation of consumer complaints arising out of their respective Products or Services as may be reasonably requested by the other Party and timely provide such information as is reasonably requested. Any written complaints received by one Party that relate to the other Party’s Product or Service shall be promptly forwarded to that Party for response.
7. Company acknowledges that any delay in creative work, Product, artwork or approvals may impact Brandshare’s ability to execute the Services listed on each Schedule within the scheduled timeframe. In the event any of the Brandshare Partners are not available at the start of Services to be provided, either partially or in full due to Company delays, Brandshare retains the right to substitute Brandshare Partners to fulfill the agreed upon Services.
8. In connection with the Services provided in each Schedule, Brandshare will provide certain packaging, coupons, marketing information, collateral and other Brandshare Materials (defined below). Brandshare Materials shall remain the sole and exclusive property of Brandshare and Company will have no right, title or interest in or to the Brandshare Materials. “Brandshare Materials” means Brandshare’s processes, methodology, know-how, data, collateral, production materials, software, inventions, copyrights, patents, trade secrets, trademarks and other proprietary rights, whether existing before or after the date of this Agreement, which do not contain Confidential Information of Company. Brandshare hereby grants to Company a non-exclusive, worldwide, fully paid, royalty free license to use the Brandshare Materials solely to the extent necessary to exercise its rights with respect to the Services provided by Brandshare.
9. Confidentiality. The Parties may receive from, and may provide to the other, certain Confidential Information, as defined below. Each Party's Confidential Information is proprietary, secret, and confidential, and will be disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) on the following terms and conditions.
a. “Confidential Information" shall mean all information of either Party that is not generally known to the public relating to, any and all business, marketing, contacts, planning, product, technical, and financial information and disclosed by Disclosing Party to the Receiving Party, either directly or indirectly, and shall specifically include, without limitation, all information related to Company, and its affiliates, on the one hand, and to Brandshare and its affiliates and Brandshare Partners, on the other hand.
b. Confidential Information may include, by way of example, but without limitation: terms of this Agreement; terms of each Schedule; trade secrets, production; pricing; volume discounts; digital and E-commerce Retailer marketing, legal and fulfillment contacts; current and future products; specifications; formulae; manufacturing; marketing; strategic ideas; future plans; and other information, know-how and information, whether of a technical, business or economic nature, that is owned by or in possession of the Parties. Confidential Information shall not include that which: (a) is disclosed to the Receiving Party by a third party not in violation of this Agreement or any other obligation such third party has to the owner of such Confidential Information; (b) is or becomes part of the public domain, by publication or otherwise, through no unauthorized act or omission on the part of the Receiving Party; (c) is lawfully in the Receiving Party's possession prior to disclosure by the Disclosing Party; or (d) is independently developed by any one or more employees of the Receiving Party with no access to the disclosed Confidential Information.
c. The Receiving Party shall protect the Disclosing Party’s Confidential Information against use or disclosure other than as authorized by or pursuant to this Agreement through measures, and exercising a degree of care, which are at least as protective as those the Receiving Party exercises in protecting the confidentiality of its own proprietary information, but no less than commercially reasonable efforts. Dissemination of Confidential Information shall be limited to employees or agents of the Receiving Party that are directly involved with the Services contemplated by this Agreement, and even then, only to such extent as is necessary and essential. Parties shall inform their employees and agents of the confidential nature of the Confidential Information disclosed hereunder and cause all such employees and agents to abide by the terms of this Agreement.
d. Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any unauthorized party without prior express written consent of the Disclosing Party or unless required by law or court order. If the Receiving Party is required by law or court order to disclose Confidential Information of Disclosing Party, the Receiving Party shall give the Disclosing Party prompt written notice of such requirement, to the extent that it is legally permissible, so that an appropriate protective order or other relief may be sought.
e. Confidential Information will be used by the Receiving Party only in connection with the Services provided under this Agreement; no other use will be made of it by the Receiving Party, it being recognized that both Parties have reserved all rights to their respective Confidential Information not expressly granted herein. Each Party shall also use reasonable measures to keep such Confidential Information secure and prevent unauthorized disclosure or copying thereof.
f. All documents containing Confidential Information shall remain the property of the Disclosing Party, and all such documents, and copies thereof, shall be returned or destroyed by the Receiving Party upon the request of the Disclosing Party.
g. No Reverse Engineering. The Receiving Party shall not (i) alter, maintain, enhance or otherwise modify any software or process included within the Confidential Information; (ii) disassemble, decompile or reverse-engineer any such software or process; nor (iii) otherwise take action to discover the equivalent of any such software or process.
10. This Agreement is not intended to create, nor shall it in any way be interpreted to create a joint venture, a partnership, or any other similar relationship between the Parties. This Agreement shall not be construed as constituting Brandshare as an agent for Company for any purpose whatsoever, and Brandshare and Company shall each conduct its business at its own risk and expense and for its own account and shall be deemed to be independent contracting parties via-a-vis each other in relation to his Agreement.
11. Miscellaneous.
a. This Agreement may not be assigned by either Party without the other Party’s prior written approval, which shall not be unreasonably withheld; provided, however, that this Agreement may be (i) assigned to Brandshare’s lender or lenders as collateral for any obligation of Brandshare or any of its affiliates and (ii) assigned to any person or Party acquiring the business of Brandshare by way of asset purchase or any other type of transaction by means of any number of transactions. In either such case, the approval of Company to such transaction(s) shall not be required. Except as otherwise provided, this Agreement shall be binding upon and inure to the benefit of the Parties' successors and lawful assigns.
b. Notices under this Agreement or attachments hereto shall be personally delivered, delivered by a major commercial rapid delivery courier service (such as UPS or FedEx) or mailed by certified or registered mail, return receipt requested to a Party at its addresses first set forth herein or as amended by notice pursuant to this subsection. Any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.
c. This Agreement sets forth the entire agreement between the Parties with respect to the subject matter hereof and supersedes all previous oral or written communications between the Parties. No supplement, modification or amendment of this Agreement shall be binding unless in writing and signed by a duly authorized representative of both Brandshare and Company. This Agreement supersedes all previous agreements between the Parties relating to the Services to be provided by Brandshare, supersedes and replaces all prior agreements and understandings pertaining thereto, and cannot be modified without the prior written consent of both Parties. Except as authorized in this Section, any other purported amendment or other modification shall be void and unenforceable. No waiver of any breach of this Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any subsequent breach of this Agreement.
d. This Agreement is made under and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without reference to conflicts of law principles. To the extent the Parties have a dispute arising out of or related to this Agreement or their relationship, they agree that the Courts of the Commonwealth of Pennsylvania shall have exclusive jurisdiction over that dispute, and both agree that venue in Pennsylvania is proper and convenient. The Parties further agree this Agreement will be governed by Pennsylvania law without regard to the choice-of-law provisions thereof.
e. The Parties shall not be liable to each other for any losses arising out of the delay or interruption of its performance of its obligations under this Agreement due to any act of God, act of governmental authority, act of public enemy, or due to war, terrorism, pandemic, government shutdown, riot, flood, civil commotion, insurrection, severe weather conditions, strikes or labor disputes, inability to provide raw materials, power, supplies or other products or services of third parties (including any E-commerce Retailer), or any other cause beyond the reasonable control of the affected Party (collectively, a "Force Majeure Event"). If Brandshare is not able to fulfill any part of its commitment under this Agreement due to a Force Majeure Event, Brandshare shall return Products to Company at Brandshare’s sole cost and expense and shall pay for the shipping costs.
f. No person other than the Parties to this Agreement shall be the beneficiaries of, or acquire, any enforceable rights under or in connection with this Agreement.
g. The headings contained in this document are for purposes of guidance only and shall not affect the interpretation of the terms and conditions of the sections of this Agreement.
h. If any term or provision in this Agreement shall in whole or in part be held to any extent to be illegal or unenforceable under any enactment or rule of law that term or provision or part shall to that extent be deemed not to form part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected.
i. Sections 5, 8, 9, 10 and 11 and any other provision of this Agreement that by its terms would survive termination of this Agreement shall survive any termination of this Agreement.
j. This Agreement may be executed in two counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. A scanned copy of an original signature to the Agreement or an e-signature using Adobe Sign e-signature software (or similar) shall be effective and binding on the Parties.