Effective as of February 16, 2017
These Terms of Service (these “Terms”) shall apply to each statement of work (“SOW”) entered into by the party executing such SOW (hereinafter, “Client”) and Resolute Digital LLC, a Delaware limited liability company with a principal address of 601 West 26th Street, Suite 1515, New York, New York 10001 (hereinafter, “Resolute”). Client and Resolute may collectively be referred to herein as the “parties.” The parties do hereby agree as follows:
- The parties agree that each SOW entered into between the parties sets forth the entirety of the services to be provided by Resolute to Client pursuant to such SOW and Resolute shall not be responsible for providing any services outside of the scope set forth in the SOW. Client hereby authorizes Resolute, as Client’s agent, to undertake any and all such lawful actions as are necessary and appropriate for Resolute to fulfill its obligations under each SOW, including without limitation entering into binding agreements for which Client shall be responsible provided such agreements are entered into in accordance with an executed SOW.
- All media placement requests made by Resolute on behalf of Client pursuant to a SOW shall name the Client as Advertiser and Resolute as the Client’s Agent. Once payment has been made to Resolute by Client for such media placement, Resolute assumes full financial responsibility for remitting payment to the media provider in a timely manner. If, however, Client fails to remit payment to Resolute, then financial responsibility for payment lies with the Client and not with Resolute. Notwithstanding any termination of these Terms or an applicable SOW for any reason, Client shall remain responsible for all payments due any third party pursuant to an agreement entered into by Resolute on behalf of Client pursuant to a valid SOW. In the event Client wishes to pay third parties directly for goods or services rendered pursuant to a SOW, it is the responsibility of Client to include such payment arrangements in the applicable SOW for such goods or services. State sales tax, shipping charges, faxes, long distance telephone calls, travel expenses, delivery charges, overnight delivery services and other expenses that may accrue to work performed pursuant to a SOW but cannot be accurately estimated in advance of production are not included in estimates and are billed separately. In the event of default in payment, the Client shall pay Resolute all costs and expenses, including attorney’s fees, the fees of collection agencies and other expenses incurred in enforcing any of the terms or conditions of these Terms, any applicable SOW, and/or any applicable third party agreement entered into by Resolute pursuant to a valid SOW.
- Except as may otherwise be provided for in an applicable SOW, a SOW may only be cancelled (i) upon the mutual written agreement of the parties, (ii) upon the breach by a party of these Terms or such SOW and a failure to cure such breach within fifteen (15) days notice thereof, or (iii) the filing of a petition for bankruptcy by or against a party hereto which is not dismissed within thirty (30) days of such filing. Notwithstanding the foregoing, where Resolute has entered into a binding agreement with a third party on behalf of Client, Client shall remain responsible for any obligations created under such binding agreement following a termination of the SOW provided such agreement(s) were entered into in accordance with an executed SOW prior to the termination of such SOW. Non-cancelable contracts to which Resolute has committed on behalf of Client pursuant to a valid SOW shall be taken over and paid for by Client and Client will indemnify Resolute against any claims related thereto.
- Client understands and agrees that where Client requires that Work Product (as defined below) produced in connection with services provided by Resolute pursuant to an SOW be considered “work made for hire,” as defined in 17 U.S.C. § 101 (§ 101 of the Copyright Act of 1976), for the benefit of Client, that Client shall require that such designation be included in the SOW. In the absence of a designation in the SOW that Work Product provided pursuant to a SOW is “work made for hire,” there shall be no such presumption of ownership by Client. Resolute may provide quotes for projects based upon the use of existing proprietary technologies (which it may offer to multiple clients) or open source code bases for which Resolute either will not or cannot provide valid title. Client understands and agrees that the cost of a project set forth in a SOW would be substantially higher where Client requires that a “work made for hire” designation be included. Where a “work made for hire” designation is set forth in a SOW, Resolute agrees, and will require its employees and contractors to agree individually, to assign such Work Product, and will and do automatically assign, at the time of creation of any such Work Product, without a requirement of further consideration other than as set forth in the SOW, and regardless of any right, title or interest Resolute or its employees may have in any such Work Product, to Client. Furthermore, where a “work made for hire” designation is set forth in a SOW, Resolute agrees that it will, and will require its employees(s), upon request by Client, to take such further actions as may be appropriate to give full and proper effect to such assignment. “Work Product,” as used herein, means any original expression, whether protected by federal or international copyright laws or not, relating to any business or activity of Client, including, but not limited to, any advertising material, compilation, data repository or structure, design, drawing, manual, product/service description, software (whether executable or not), specification, or other original writing. Any unused or rejected marketing, public relations, advertising or other graphic design programs, plans, designs, and ideas prepared by Resolute will remain the property of Resolute, and shall be used as it sees fit, provided it does not involve the release of any Confidential Information regarding the Client’s business or methods of operation.
- Resolute shall at all times be responsible for its own employees and for directing their performance of services hereunder. Nothing set forth in these Terms or any SOW shall give rise to an obligation on the part of Client to become responsible for the payment of any wages or benefits to Resolute’s employees or contractors.
- Each party to these Terms and a SOW (the “Recipient”) may have access to certain non-public information of the other party (the “Disclosing Party”), which information a reasonable person would consider confidential or which is marked as “confidential” or “proprietary” by the Disclosing Party, collectively “Confidential Information.” Commencing upon the execution of an SOW and continuing for a period of three (3) years thereafter, the Recipient agrees not to disclose any Confidential Information to any third parties or to use any Confidential Information for any purpose except to carry out its obligations under these Terms or an SOW. The Recipient shall make every effort to keep such Confidential Information confidential, using the same degree of care the Recipient uses to protect its own confidential information of a similar nature, as long as it uses at least reasonable care. Both Parties acknowledge and agree that due to the unique nature of the Confidential Information, any breach of these confidentiality obligations may allow third parties to unfairly compete resulting in great harm to the Disclosing Party. Each party further acknowledges that it is aware that the U.S. securities laws prohibit any person who has material non-public information about a company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and that the Confidential Information will not be used in a manner that violates U.S. securities laws. Notwithstanding the above, Confidential Information does not include information that: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Recipient; (ii) was known to the Recipient, without restriction, at the time of disclosure; (iii) was independently developed by or on behalf of the Recipient without any use of the Confidential Information of the Disclosing Party, as evidenced by the Recipient’s records; (iv) becomes known to the Recipient, without restriction, from a source other than the Disclosing Party without breach of these Terms by the Recipient; (v) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided the Recipient has notified the Disclosing Party of an obligation to disclose such information and the Disclosing Party has been provided with the opportunity to oppose such disclosure or obtain a protective order. Each party hereto agrees to return any material and/or documents, without making or taking copies thereof, provided to it by the other party in order to carry out each party’s obligations pursuant to a SOW, upon request of the party providing such material and/or documents, provided however that if the Receiving Party is unable to meet its obligations pursuant to this section in order to maintain compliance with any valid court order or applicable law, the confidentiality terms set forth above with respect to Confidential Information shall continue in full force and effect until such time as the Receiving Party is no longer obligated to maintain such information, at which time such Receiving Party will immediately comply with this section without further notice or request. Notwithstanding the foregoing, or any provision to the contrary in these Terms, Resolute may issue a press release using Client’s name and logo relating to the performance of services on behalf Client and may promote, display and disseminate Client materials that do not constitute Client Confidential Information to contests and other panels for industry recognition in its sole discretion. Client hereby licenses to Resolute its logo and all trademark rights in its logo for the foregoing purposes.
- Client agrees that during the term of any SOW and for a period of three (3) years after the termination or expiration of the last SOW with Resolute, without the prior written consent of Resolute, Client will not directly or indirectly, solicit to hire any employee of Resolute with whom you have had contact or who (or whose performance) became known to you in connection with the provision of services to Client pursuant to a SOW or due to the receipt of Confidential Information, provided, however, that nothing in this section shall preclude Client from hiring or considering and accepting an application from any individual who contacts Client on his or her own initiative in response to a published recruitment advertisement or a general mandate given to any recruitment consultant not specifically targeted to Resolute’s employees.
- Client agrees that Resolute shall not be held liable for the failure of media or suppliers to meet their obligations, nor shall Resolute be liable for delay, omission or error in any advertisement in the absence of willful fault or neglect. Notwithstanding anything to the contrary in these terms or any SOW, under no circumstances shall Resolute be required to undertake any campaign or prepare any advertising or publicity which is in Resolute’s judgment misleading, libelous, unlawful, indecent or otherwise prejudicial to Resolute or to Client’s interest.
- Neither party warrants that the performance of the services pursuant to a SOW will be uninterrupted or error-free. NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.
- Client agrees to indemnify, defend and hold Resolute and its officers, directors, employees, contractors, successors, and assigns harmless from any and all actions, claims, demands, costs, liabilities, expenses (including attorney fees) and damages that arise (i) directly or indirectly out of the breach by Client of any agreement, representation or warranty hereunder, (ii) based upon any advertising or publicity the Resolute prepared for Client, and which was approved by Client prior to publication or broadcast, (iii) based upon any specifications provided by Client pursuant to a SOW, including any intellectual property rights related thereto, and (iv) based upon any advertising element (i.e., photographs, artwork, etc.) furnished by Client, and which allegedly violates the personal or property rights of any person or persons if Client approved in writing the use of the said element before its publication or broadcast. The foregoing indemnification obligation shall survive the termination of an SOW or these Terms for any reason.
- EXCEPT INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN OR IN A SOW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, (INCLUDING BUT NOT LIMITED TO LOST PROFITS), INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING, DIRECTLY OR INDIRECTLY, OUT OF ITS PERFORMANCE OF A SOW OR THESE TERMS (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR SUCH PARTY HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES). EXCEPT FOR INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, IN THE EVENT EITHER PARTY SHOULD BE LIABLE FOR ANY REASON, THAT PARTY’S TOTAL CUMULATIVE LIABILITY ARISING HEREUNDER, AND THE OTHER PARTY’S EXCLUSIVE REMEDY, SHALL NOT EXCEED THE TOTAL FEES PAID TO RESOLUTE BY CLIENT HEREUNDER.
- If any clause or provision in these Terms or any valid SOW is determined to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, it will not affect the validity of any other clause or provision these Terms and/or any such SOW, which will remain in full force and effect; provided, however, that a court having jurisdiction may revise such provision to the extent necessary to make such provision valid and enforceable consistent with the intention of the Parties. These Terms and any SOWs entered into between Client and Resolute constitute the entire agreement between the Parties hereto relating to the subject matter thereof. No variation or modification of these Terms and any SOW or waiver of any of the terms or provisions hereof or thereof will be deemed valid unless in writing and signed by the parties. In the event of any inconsistency between these Terms and an SOW, the terms of such SOW shall control. Neither party shall be deemed in default under any SOW due to force majeure causes beyond its reasonable or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree. The failure by a party to exercise or enforce any of its rights shall not constitute a waiver of that party’s rights hereunder to enforce each and every term and condition of these Terms and all SOWs. No obligations under these Terms or any applicable SOW nor any rights or obligations hereunder or thereunder may be assigned by either party without the written consent of the other party, except that Resolute (i) may engage, without prior written consent, such subcontractors and other third parties as it deems necessary or appropriate to carry out all or a portion of its obligations, and (ii) may make an assignment in connection with a merger or other consolidation, or a sale of all or substantially all of its assets to a third party. These Terms and each SOW entered into between Client and Resolute shall be governed by the laws of the state of New York, U.S.A., without reference to its choice of law rules. Any provision of these Terms or an SOW which by its nature would continue beyond expiration of these Terms shall survive termination or expiration of these Terms and any applicable SOW. Each SOW entered into between Client and Resolute may be signed in one or more counterparts each of which will be deemed an original and all of which will be deemed to be one instrument. A copy of a SOW bearing the signature of one or both parties shall be deemed to be of the same legal force and effect as an original. Nothing contained herein shall be interpreted to create an exclusive relationship between Client and Resolute with respect to the subject matter hereof.