Story & Reach Communications Terms and Conditions
These, the Story & Reach Communications Terms and Conditions form an integral part of any Contract issued by Story & Reach Communications LLC (“S&R”), and of any Statement of Work issued by S&R and of any agreement made by S&R in or with such an agreement there is a reference to these Terms and Conditions as well as if the Client has previously received a Contract, Statement of Work, or agreement from S&R in which or whereby it was referred to these Terms and Conditions or an earlier version of such.
These Terms and Conditions along with, and as incorporated into, every Contract, Statement of Work, or other agreement between S&R and Client, which, together with such Contract, Statement of Work or other agreement shall be referred herein as the “Agreement.”
Any provisions of a Contract, Statement of Work, or other agreement that conflict with these Terms and Conditions shall only apply between the Client and S&R if they have been expressly agreed by S&R in writing.
Services: S&R shall provide Client with the services set forth in the Agreement, collectively, the “Services”. To the extent that the parties later mutually agree to add additional services to the Agreement, additional statements of work may be entered into and incorporated into the Agreement. The Services, and the Deliverables (as defined in Section (4), below) created under an Agreement, are subject to Client’s good faith approval in all respects, such approval not to be unreasonably withheld, conditioned, or delayed. To the extent that Client disapproves of any such Services and/or Deliverables, Client shall promptly provide S&R with written notification detailing its disapproval, and provide S&R with a reasonable opportunity to cure any defect(s) therein.
Cooperation:
S&R Cooperation: Client acknowledges that the successful and timely rendering of the Services and other services and the successful development of the Deliverables (as defined in the Agreement) by S&R will require the good faith cooperation of Client. Accordingly, Client will fully cooperate with S&R, including, without limitation, by: (a) providing S&R with all information and materials reasonably requested by S&R and necessary or appropriate for S&R to render the Services; (b) making available to S&R: (i) personnel of Client; and (ii) to the extent necessary for S&R’s development of materials, a reasonable amount of time on Client’s computer systems, provided that the foregoing shall be scheduled at such times so as to not disrupt the conduct of Client’s business; (c) providing at least one employee or consultant with substantial relevant experience to act as a Client contact in connection with the Services; (d) providing timely review of Deliverables submitted by S&R; and (e) furnishing S&R with adequate substantiation of all descriptions and representations requested by Client to be incorporated in the Deliverables.
Timing of Deliverables: S&R shall ensure that the Deliverables are provided to Client on or before the dates set forth in the Agreement. Notwithstanding the foregoing, S&R shall not be liable for delays in delivery other than to the extent due to S&R’s gross negligence or willful misconduct. Without limitation on the foregoing, S&R shall not be liable for delays caused by Client’s negligence, misconduct, or breach hereof, and all due dates shall be extended to accommodate Client’s actions and/or requests for changes to the Deliverables or Services.
Compensation: As full and complete consideration for the Services and Deliverables, Client shall pay to S&R the Fees and Expenses as noted in the Agreement.
Fee. The Fee shall be payable as stated in the Agreement, in monthly installments during the initial term of the Agreement. If the initial term is extended, the Fee shall be adjusted by mutual written agreement of the parties. The Fee is exclusive of all applicable taxes owed by Client, which shall include sales, use, excise, import or export, stamp, value added, and any similar tax or duty. Taxes based on S&R’s income, real estate, and/or business licenses or activities of any kind are not Client’s responsibility.
Expenses. In addition to the Fee (plus applicable taxes), Client shall be responsible for the following:
S&R’s out-of-pocket expenses incurred in connection with its rendition of the Services and delivery of the Deliverables under the Agreement (which may include, without limitation: travel and related expenses, long distance telephone charges, facsimile charges, Federal Express charges, third party vendor charges, music licensing charges, talent charges, and other third party production charges).
All advertising publication/media buy costs required pursuant to agreed-upon, pre-approved written agreements with ad publishers entered into by S&R on Client’s behalf. In order to obtain Client’s approval, S&R shall submit to Client written proposals containing full descriptions of the proposed media buy along with an estimate of the costs.
The out-of-pocket expenses and the advertising publication/media buy costs shall collectively be referred to herein as the “Expenses”.
Payment. S&R shall submit invoices every month for the agreed Fee, along with the corresponding Expenses for the month, subject to Client’s receipt of an invoice in connection with the Expenses. Client shall have thirty (30) days following its receipt of the applicable invoice to make such payment. Client shall be responsible for interest on all amounts overdue by more than fifteen (15) days at a rate of the lesser of one and one-half percent (1.5%), or the maximum rate allowable by applicable law, along with all of S&R’s collection costs, including without limitation attorneys’ fees and expenses, incurred in connection therewith. If Client is delinquent in any payment due under the Agreement for at least fifteen (15) days, S&R shall have the right to: (i) suspend the Services and forestall delivery and completion of any Deliverable provided under all Agreements with Client until such time as Client makes such applicable payment; or (ii) terminate any and all Agreements with Client.
Ownership:
Deliverables: Subject to S&R’s rights in and to S&R Property (as defined below) and any designated third party rights, and further subject to Client’s payment obligations as set forth in the Agreement, once payment for a service or other Deliverable is received, Client shall own all right, title, and interest in and to all Deliverables created by or on behalf of S&R for Client in connection with its rendition of Services under the applicable Agreement on a “work for hire” basis (as such term is commonly understood in U.S. copyright law). S&R agrees to execute any and all documents that it deems reasonably necessary to effectuate this arrangement. No right of publicity or other interest is granted in and to the rights or likenesses of S&R personnel or employees.
S&R Property: Notwithstanding subsection (a) above, all creative content, computer code, methodologies, and other information and/or materials created by S&R prior to or outside the scope of the Agreement (the “S&R Property”) shall remain the sole and exclusive property of S&R, despite its incorporation in the Deliverables. Subject to Client’s payment obligations as set forth in the Agreement, S&R shall grant a fully paid-up, perpetual, worldwide, non-exclusive, non-transferable license to Client to use S&R Property, but only to the extent incorporated into the Deliverables and without any modification thereto. In no event shall Client be entitled to use any of S&R Property separately and apart from its incorporation in the Deliverables under the Agreement.
Third Party Materials: Notwithstanding the foregoing, all materials, rights, and intellectual property owned by third parties (such as talent rights, photography, artwork, props and music) shall remain the sole and exclusive property of such third parties despite their incorporation in the Deliverables, and Client agrees to use such third-party materials consistent with the restrictions for such third-party materials communicated to Client in writing.
S&R Promotional Rights: Notwithstanding anything set forth in the Agreement to the contrary, Client agrees that S&R shall have the right, without prior approval, to use any and all non-confidential Deliverables following their publication to promote S&R and to market S&R’s services to third parties, including, but not limited to, submitting such Deliverables to industry award shows and posting them on S&R’s website.
Preliminary Materials: Notwithstanding anything set forth in the Agreement to the contrary, any Deliverables prepared or proposed by S&R but not produced and published or broadcast within the term of the applicable Agreement and any Deliverables prepared or proposed by S&R and rejected by Client, shall remain the property of S&R (the “Preliminary Materials”). Subject to the Agreement, S&R shall have the right to use the Preliminary Materials without limitation; provided, however, that, any such use shall not involve the release of any of Client’s confidential information.
Term: The term of the Agreement (the “Term”) shall commence as of the Effective Date and continue for the number of months as stated in the Agreement, unless sooner terminated as provided for in the Agreement. S&R and Client may agree to extend the Term of the Agreement by mutual written agreement.
Media/Advertising/Artwork Requirements: Client agrees to work with a designated representative of S&R (handling media or advertising artwork) in order to submit media or ad copy in compliance with S&R’s reasonable specifications as communicated to Client by such representative from time to time.
Right of Refusal: S&R may, in its sole good faith discretion, refuse to assist in the publication of any media or advertising provided by Client to S&R pursuant to the Agreement if: (i) it does not comply with S&R’s (and/or the particular publisher’s) specific formatting, editorial, and/or publishing guidelines; (ii) it believes in good faith that the publication of such media or ad copy violates any applicable law, rule, or regulation (including without limitation any federal regulations such as Section (5) of the FTC Act, Section 43(a) of the Lanham Act, the Copyright Act of 1976, and the CAN-SPAM Act), and/or (iii) it believes in good faith that such media or ad copy does not comply with reasonable moral standards promulgated by either S&R, the applicable publisher, and/or society in general. Notwithstanding the foregoing, S&R shall, prior to any such refusal, provide Client with written notification detailing the reason(s) associated therewith, in order to provide Client with the opportunity to conform the media or ad in question to S&R’s reasonable specifications.
Liability: S&R agrees that it will use all reasonable efforts to protect any and all materials supplied to S&R under the Agreement by Client. Notwithstanding the foregoing, S&R will not be liable for any loss, cost or damage thereto, but only to the extent that any such loss, cost or damage is not due to the gross negligence or willful misconduct of S&R (or its employees or agents). To the extent that any such loss, cost or damage arises directly out of S&R’s gross negligence or willful misconduct, S&R shall reimburse Client for all reasonable costs required to replace or fix such materials.
Legal Compliance with Media and Advertising Laws, Rules and Regulations: Client acknowledges that it is S&R’s business policy to conduct media campaigns in a manner so as not to: send unsolicited (i.e., spam) email to recipients (unless authorized by Federal law), promulgate media that is, in any way, false or misleading, misuse or misappropriate another party’s intellectual property and/or other third party rights of any kind, send obscene messages to any recipients, and/or use email or any other medium to conduct illegal or immoral activities of any kind as per current, applicable law. Client and S&R both agree not to take any actions inconsistent with this policy, and to make all of its employees and agents aware of such policy in order to ensure compliance herewith. Client further agrees that in its relationship with S&R, the Client itself is responsible that its use of Deliverables and the actions carried out by the Client and/or on behalf S&R on the client’s instruction, comply with the laws and regulations by government and with the other related (whether or not sector-specific) regulations in the country of the use of the Deliverables and of the performance of the actions are not unlawful or constitute a breach of contract towards third parties.
Confidentiality:
Neither party (each, a “receiving party”), along with its directors, officers, employees, agents, advisors, subcontractors, independent contractors, subsidiaries, and affiliates (collectively its “Representatives”) shall, during the Term and for a period of two (2) years thereafter, without the other party’s (each, a “disclosing party”) prior written approval in each instance (not to be unreasonably withheld), disclose or otherwise make available to any other person or entity any information relating to the disclosing party’s business plans, products, advertising, innovations, fees, advertising or product concepts, customers, technology, computer software, computer systems, marketing methods, sales margins, cost of goods, cost of materials, capital structure, operating results, or other business affairs (including without limitation, S&R’s rates and the remainder of the terms hereof), or any other proprietary or confidential information of the disclosing party (the “Confidential Information”). The foregoing shall not apply to Confidential Information which: (i) is or becomes known to the general public (other than as a result of the disclosure, directly or indirectly, by the receiving party or its Representative); (ii) was or is made available to the receiving party on a non-confidential basis from a source other than the disclosing party or any affiliate, provided that such source is not, and was not, to the receiving party’s actual knowledge, bound by a confidentiality agreement with the disclosing party or any affiliate or otherwise prohibited from transmitting such information by contract, legal or fiduciary obligation to the disclosing party, any affiliate, or any third party; or (iii) is required to be disclosed by law, provided the receiving party gives disclosing party notice and an opportunity to seek an appropriate protective order at its own expense. It is understood that the information required to be held in confidence as provided for in the Agreement may be disclosed by the receiving party only to Representatives who need to know such Confidential Information for the purposes of fulfilling its obligations hereunder. Such Representatives, prior to any such disclosure, shall be informed of the confidential nature of such Confidential Information, and shall agree to be bound by the terms hereof.
All Confidential Information furnished to the receiving party by the disclosing party or any third party at the request of the disclosing party shall be and remain the property of the disclosing party. All copies of such Confidential Information in written, graphic, or other tangible form shall be returned to the disclosing party at any time upon the advance written request of the disclosing party or upon the termination of the applicable Agreement for any reason whatsoever, subject to the Agreement.
Non-Solicitation: Client may not solicit the services (either on a part-time or full-time basis) of S&R’s employees, independent contractors, and/or consultants during the Term and for two (2) years thereafter. This restriction shall not apply to the engagement of those employees, independent contractors, and/or consultants who have ceased to provide services (either on a full or part-time basis) to S&R for at least one consecutive (1) year prior to any such solicitation. Client agrees that S&R’s remedy at law for a breach of this Section shall be inadequate, and therefore S&R shall be entitled to injunctive relief for such breach, without proof of irreparable injury and without having to post a bond, in addition to any other right or remedy it may have.
Representations & Warranties: In signing any Agreement, Client represents and warrants that it is duly organized, validly existing and in good standing in its state of incorporation, and has full power and authority to enter into the Agreement and fulfill its obligations thereunder. Client further represents and warrants to the other party that the information and materials provided by it thereunder, when used as authorized: (i) are complete, true, and accurate in every respect; (ii) do not violate any applicable law, rule, or regulation (including any and all applicable advertising regulations); and (iii) do not violate the third party rights of any person or entity in any way (including without limitation any intellectual property, privacy, defamation, or publicity rights).
Indemnification: Client and S&R, each (each, the “Indemnifying Party”) agrees to indemnify and hold the other party (each, the “Indemnified Party”), along with the Indemnified Party’s affiliates, officers, directors, employees, subsidiaries, parent, agents, and permitted assigns, harmless from and against any and all third party claims, losses, liabilities, damages, expenses, and costs, including reasonable outside attorneys’ fees and court costs, to the extent arising out of the Indemnifying Party’s: (i) negligence or willful misconduct; or (ii) material breach of any of the terms of the Agreement (including without limitation the representations & warranties contained in the Agreement). The Indemnified Party shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement to the Indemnifying Party, and shall reasonably cooperate with the Indemnifying Party, its insurance company, and its legal counsel in its defense of such claim(s), at the Indemnifying Party’s expense. This indemnity shall not cover any claims in which there is a failure to give the Indemnifying Party prompt notice, to the extent such lack of notice prejudices the defense of the claim. The Indemnifying Party may not settle any potential suit hereunder without the Indemnified Party’s prior written approval (not to be unreasonably withheld, conditioned or delayed).
Insurance: S&R and Client each shall maintain, at their own cost and expense, the following insurance coverage: (i) Comprehensive Commercial General Liability Insurance with minimum limits of not less than $1,000,000 per occurrence; (ii) Worker’s Compensation Insurance in limits not less than required by applicable law; and (iii) Employer’s Liability Insurance in limits not less than $1,000,000 per employee per accident. Said policies shall be issued in the United States and written by a recognized insurance company with an A.M. Best Company rating of “A-” or better in the latest edition of Best’s Insurance Guide and Key Ratings, and name the other party (along with its directors, officers, shareholders, parents, subsidiaries, partners, agents, employees, successors and assigns) as additionally insured parties. Additionally, the above-referenced policies shall provide that not less than thirty (30) days prior written notice of cancellation, non-renewal, or material change be given to the other party.
Limitation of Liability: EXCEPT FOR THE PARTIES’ RESPECTIVE INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BY LIABLE UNDER THESE TERMS AND CONDITIONS OR AN AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. S&R’S AGGREGATE LIABILITY FOR CLAIMS RELATING TO ANY AGREEMENT WILL BE LIMITED TO AN AMOUNT EQUAL TO THE SUM OF THE FEES PAID BY CLIENT TO S&R UNDER THE AGREEMENT.
Term and Termination:
Without Cause: An Agreement may be terminated by S&R, for any reason, upon thirty (30) days prior written notice to the Client.
For Cause: An Agreement may be immediately terminated by either party without further liability or obligation to the other party if: (i) the other party violates any applicable U.S. state or local law, rule, regulation, or ordinance (including without limitation, any applicable advertising regulation); (ii) the other party otherwise materially breaches any provision, warranty, or representation of an Agreement, and, if such breach or violation is curable, it remains un-remedied for a period of seven (7) days following receipt of written notice detailing such breach or violation; (iii) the other party acts in a manner that would be considered immoral, illegal, indecent, harassing, lewd, incendiary, defamatory, libelous, or otherwise patently offensive, and such behavior has caused, or could reasonably cause, harm to the reputation of the complaining party and/or its affiliates; or (iv) the other party becomes insolvent, makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver for its business, or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency or protection of the rights of creditors.
Following Termination: In the event of any termination, Client shall pay S&R all amounts due to S&R up through the effective date of termination, including without limitation the actual costs, expenses, and Fees incurred by S&R on behalf of Client prior to the effective date of termination. Additionally, upon termination of an Agreement, and subject to Client’s payment obligations, S&R shall transfer to Client all materials in S&R’s possession or control paid for by Client, and all contracts and reservations for time, space, talent and other resources entered into by S&R for Client hereunder.
Force Majeure: Other than with respect to Client’s payment obligations, neither party shall be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including without limitation, war, weather, strikes, lockouts, fires, acts of God, or terrorism. Notwithstanding the foregoing, the affected party shall promptly provide written notice thereof to the other party, which notice shall include a detailed description of the event of force majeure along with the affected party’s best estimate of the length of time such event will delay or prevent performance hereunder. Additionally, the affected party shall use reasonable efforts to limit the impact of the event of force majeure on its performance hereunder.
Partial Invalidity: In the event that any part or portion of the Agreement is deemed to be invalid and therefore unenforceable, the remaining provisions shall continue in full force and effect.
Assignment: Neither party shall assign or otherwise transfer the Agreement, in whole or in part, without the prior written consent of the other party in each instance such consent not to be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, either party may be free to assign the Agreement to any (a) affiliate of such party, or (b) successor entity of such party that assumes all, or a majority of, such party’s assets in writing. Any assignment in violation of this clause shall be null and void.
Relationship of the Parties: The parties are independent contractors and as such, at no time shall either party be considered an employee or employer of the other. Without limitation on the generality of the foregoing, neither party may bind the other party to any agreement, obligation or covenant of any kind (expressed or implied) without the bound party’s prior written consent in each instance.
Survival: Following the Term, any and all provisions set forth in the Agreement which, by their very nature, are intended to survive any expiration or termination hereof, shall so survive, including without limitation, the provisions respecting confidentiality, representations & warranties, non-compete, non-solicitation, indemnifications, limitations on liability, insurance, ownership, and accrued payment obligations.
Waiver: The failure of either party to require performance by the other party of any provision of the Agreement will not affect the full right to require such performance at any time thereafter; nor will the waiver by either party of a breach of any provision of the Agreement be taken or held to be a waiver of the provision itself.
Notices: All notices required or permitted to be given under the Agreement shall be in writing to the address of the parties set forth in the Agreement, and may be delivered by hand, by electronic mail, by nationally recognized private courier, or by United States mail. Notices delivered by mail shall be deemed given three (3)-business days after being deposited in the United Sates mail, postage prepaid, registered or certified mail. Notices delivered by hand or electronic mail shall be deemed given on the first business day following receipt.
Attorneys’ Fees: If S&R incurs any legal fees associated with the enforcement of the Agreement or any rights under the Agreement, it shall be entitled to recover its reasonable outside attorneys’ fees and any court, arbitration, mediation, or other reasonable litigation expenses from the Client.
Governing Law, Venue and Arbitration: S&R and Client agree that any claims arising out of, or in relation to any matter concerning, the Agreement shall be settled exclusively by a binding arbitration (“Arbitration”), conducted by a single arbitrator (the “Arbitrator”) chosen by the parties as described below. Either party may initiate the Arbitration by written notice to the other and to the Arbitration Tribunal. The date on which the notice is given is called the “Arbitration Initiation Date”. The fees and expenses of the Arbitration Tribunal and the Arbitrator shall be shared equally by the parties, and advanced by each, equally from time to time as required; provided, however, that at the conclusion of the Arbitration, the Arbitrator may award costs and expenses (including the costs of the Arbitration previously advanced and the fees and expenses of attorneys, accountants and other experts) to the prevailing party. The Arbitration shall be conducted under the procedures of the Arbitration Tribunal, except as modified herein. The “Arbitration Tribunal” shall be the Chicago Office of JAMS/ENDISPUTE (“JAMS”). The Arbitrator shall be a retired judge or other arbitrator employed by JAMS selected by mutual agreement of the parties to the dispute, and if they cannot so agree within thirty (30) days after the Arbitration Initiation Date, then the Arbitrator shall be selected by a circuit judge of the Circuit Court of Cook County. The Arbitrator must have had not less than fifteen (15) years’ experience as a transactional or litigation lawyer), judge or arbitrator of complex business transactions. No pre-arbitration discovery shall be permitted, except that the Arbitrator shall have the power in his or her sole discretion, on application by any party to the Arbitration, to order pre-arbitration examination solely of those witnesses and documents that the other party intends to introduce as its case-in-chief at the arbitration hearing. Prior to the commencement of arbitration hearings, the Arbitrator shall have the power, in his or her discretion, upon either party’s motion but not the Arbitrator’s own initiative, to order the parties to engage in pre-arbitration mediation for a period not exceeding thirty (30) days before a mediator mutually acceptable to the parties. The Arbitrator shall try any and all issues of law or fact and be prepared to make the award within ninety (90) days after the close of evidence in the Arbitration. When prepared to make the award, the Arbitrator shall first so inform the parties, who shall have ten (10) days to attempt to resolve the matter by a binding agreement between them. If the parties so resolve the matter, then the Arbitrator shall not make any award. If the parties do not so resolve the matter, the Arbitrator shall make the award on the eleventh day following his notice of being prepared to make the award. The Arbitrator’s award shall dispose of all of the claims that are the subject of the Arbitration and shall follow Illinois law and precedent, and shall be a reasoned opinion. The Arbitrator shall be empowered to (i) enter equitable as well as legal relief, (ii) provide all temporary and/or provisional remedies, and (iii) enter binding equitable orders. The award rendered by the Arbitrator shall be final and not subject to judicial review, and judgment thereon may be entered in any court of competent jurisdiction. This Agreement and the rights of the parties hereunder shall be governed by and interpreted in accordance with the internal laws of the State of Illinois, without reference to the rules regarding conflict or choice of laws of such State. The parties acknowledge and agree that JAMS/ENDISPUTE shall have exclusive jurisdiction to hear and decide any dispute, controversy or litigation regarding this Agreement.
Entire Agreement; Modification: The Agreement sets forth the entire agreement between the parties with respect to its subject matter and supersedes any prior agreement or communications between the parties, whether written or oral relating the Agreement. No representation, inducement or promise has been made or relied upon by either party, unless as expressly set forth in the Agreement. The Agreement may be modified only by a written amendment agreed to by S&R.