Marketing Services Agreement

Standard Terms (Version 2016-05-12)

These are Active Marketing’s Standard Terms of Agreement. These terms are in addition to the terms set forth by and between Active Marketing, a Michigan limited liability company with a registered office at 2800 Aero-Park Drive, Suite A, Traverse City, MI 49686 (herein, "Active Marketing") and you, the Client, having entered into an agreement for marketing services pursuant to a signed proposal (herein, "Client"). Each party may be referred to individually as a "Party" and collectively as "the Parties."

The Parties agree as follows:

Section 1: Provision of Services.

1. Scope of Services. Active Marketing will provide, and Client shall purchase, those such services described in a signed Proposal (herein, "Proposal"). Each Proposal shall contain exhibits that describe the services Active Marketing will provide, the payment terms Client shall abide by and any such additional terms that apply in addition to the terms stated here in these Standard Terms. Proposals are effective on the date signed and shall remain in effect unless otherwise terminated, according to the applicable termination provision. Upon signing, each Proposal becomes incorporated into this agreement.

2. Construction of Agreement. References to the Standard Terms means reference to the terms stated herein (as opposed to those stated in a Proposal); references to "the agreement" refers to the Standard Terms in addition to an applicable Proposal’s additional terms.

3. Additional Services; Modification of Existing Proposal. The Parties may, from time to time, enter into new statements of work, as evidenced by additional Proposals. The Parties may modify the terms of an existing Proposal by mutual consent under a written Change Order. No additional Proposal or Change Order becomes effective or incorporated into this agreement unless accompanied by written approval from both Parties.

4. Performance of Services. Both Parties shall devote the time and attention necessary to render their respective obligations, provided however Client acknowledges that Active Marketing provides marketing services to its other clients and as such, the order in which services are to be performed is under the control of Active Marketing. Active Marketing will render its performance utilizing its best efforts, in accordance with standard, accepted industry practices in the marketing industry.

5. Term. This agreement is effective as of the date the initial Proposal was signed (the "Effective Date") and shall remain in effect for the duration of the term stated in an applicable Proposal, unless otherwise terminated in accordance with a Proposal’s termination provision, whichever is earlier.

Section 2: Standard Payment Terms.

2.1. Invoices. Active Marketing requires receipt of payment from Client prior to engaging or continuing to render its performance of services pursuant to a Proposal. Invoices are due on the date of the invoice. Each Proposal shall describe Client’s payment schedule or payment terms.

Section 3: Mutual Representations; Parties Relationship.

3.1. Mutual Representations. Each Party represents to the other Party that: (a) the individuals signing this agreement have the requisite power to bind their respective business entities to this agreement; (b) execution and performance of this agreement does not conflict with any other contracts or obligations to which the party is bound; (c) there is no pending or threatened action that would have any material adverse effect on this agreement or on the Party’s ability to render its performance to the other Party under this agreement.

3.2. Parties Relationship. Active Marketing is an independent contractor of Client and as such, Active Marketing controls the means, manner and method by which it performs its services under this agreement. Nothing contained in this agreement creates a partnership, joint venture, employer/employee, principal-and-agent or any similar relationship between the Parties.

Section 4. Confidentiality.

4.1. Definition of Confidential Information. The term "Confidential Information" includes all non-public, business-related information, written or oral, disclosed or made available by one Party (in such capacity, the "Disclosing Party") to another Party (in such capacity, the "Receiving Party") through any means of communication. Without limitation, Confidential Information may include: business goals, objectives, strategies, budget, costs, performance metrics, client lists, and market reports.

4.2. Confidentiality Obligations. The Receiving Party shall use Confidential Information only to the extent necessary to render its performance under this agreement and shall not disclose Confidential Information without the Disclosing Party’s prior written consent. The Receiving Party shall protect the confidential nature of all Confidential Information using the same or similar means that is uses to protect its own confidential information. Each Party represents that it uses no less than reasonable care to protect its own confidential information. The Receiving Party may disclose Confidential Information to its agents or employees on a strict need-to-know basis, provided that any such agent or employee shall be under the same or similar restrictions of non-disclosure and non-use of Confidential Information as stated in this provision. The Receiving Party will promptly notify the Disclosing Party of any breach of confidentiality.

Section 5. Client Resources and Materials; Rights to Final Work Product.

5.1. Client Resources and Materials. In order to enable Active Marketing to meet its obligations under this agreement, Client shall provide Active Marketing with all necessary information and documentation and make available, as reasonably requested by Active Marketing, sufficient resources and make and give timely decisions, approvals and acceptances. With regard to a Proposal’s creative deliverables, Client shall provide Active Marketing with access to any such client materials including, without limitation, such things as: creative assets, logo, photo and image library access.

5.2. Rights to Final Work Product. All intellectual property owned by the Client prior to entering into this agreement or created by Client or by Client-agents outside the scope of this agreement are owned by the Client (herein "Client Intellectual Property") just as all intellectual property owned by Active Marketing prior to entering into this agreement or created by Active Marketing during the course of this agreement that is unrelated to and not derived from Client materials are owned by Active Marketing. Without limiting the generality of the foregoing, Active Marketing shall be considered the owner of all work product created under this agreement, except those parts of the work product that constitute Client Intellectual Property, and Active Marketing shall duly and automatically transfer to Client all rights and title to the final work product upon timely payment of any sums due for the work product by Client.

Section 6. Indemnification and Limitation of Liability.

6.1. Indemnification. Client shall indemnify Active Marketing for any third-party claim based on or related to: (i) actual or alleged intellectual property infringement based on Active Marketing’s use of materials supplied by or on behalf of Client; (ii) Client’s use of non-finalized marketing materials created by Active Marketing for Client; (iii) Client’s negligence or willful misconduct.

6.2. Limitation on Liability. Notwithstanding any provision to the contrary, and excluding damages related to intellectual property infringement, neither Party will be liable to the other Party for any incidental, consequential or special damages. Without limiting the generality of the foregoing, a Party’s total liability under this agreement will not exceed the total amount of fees paid by Client to Active Marketing in the preceding 12 months.

Section 7. Dispute Resolution.

7.1. Dispute Resolution. The Parties shall attempt to resolve any disputes arising out of or relating to this agreement by informal means first, as follows: as soon as practicable after discovery of any dispute, the aggrieved Party shall notify the other Party of the dispute in writing. The writing shall state the nature of the dispute and provide a request for redress. Upon receipt of the written notice of dispute, and in no later than 5 business days, the Parties shall work together in good faith to come to a resolution of the dispute. If the Parties are unable to resolve their dispute after their good faith efforts, then any claim or controversy arising out of or relating to this agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association, in accordance with its Commercial Arbitration Rules, and judgement on the award may be entered in any court having jurisdiction thereof.

Section 8. Termination.

8.1. Termination for Client’s Failure to Pay. If Client fails to pay when due any amount owing under this agreement and that failure continues for 3 business days, Active Marketing may terminate this agreement, with immediate effect, by giving notice to the Client.

8.2. Effect of Termination. During the termination period, the Parties’ obligations shall continue: Active Marketing will remain ready, willing and able to provide services to Client and Client shall make timely payments to Active Marketing. Upon termination, any outstanding amount becomes immediately due and payable and Active Marketing shall promptly return to Client all Client property in its possession or under its direct control.

Section 9. General Provisions.

9.1. Binding Effect. This agreement benefits and binds the Parties and their respective heirs, successors, and permitted assigns.

9.2. Assignment. Neither Party may assign this agreement or any of their rights or obligations under this agreement without the prior written consent of the other Party.

9.3. Amendment. This agreement may be amended only by a written instrument signed by the Parties.

9.4. Notices. All notices required under this agreement must be in writing. Notices shall be deemed sufficient if given by registered or certified mail, postage prepaid, return receipt requested to the respective addresses of the parties as first written above or at such other addresses as the respective parties may designate by like notice from time to time.

9.5. Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

9.6. Force Majeure. Neither party will be liable for any failure or delay in the performance of any of its obligations under this agreement if its failure or delay is due to the occurrence of an event that cannot be reasonably anticipated or controlled.

9.7. Waiver. A Party’s failure or neglect to enforce any rights under this agreement will not be deemed a waiver of that party’s rights.

9.8. Governing Law; Jurisdiction. This agreement will be governed by and construed in accordance with the laws of the State of Michigan, without regard to its conflict of laws principles. The Client consents to personal and subject matter jurisdiction in Grand Traverse County, MI.

9.9. Counterparts. This agreement may be signed in any number of counterparts, each of which is an original and all of which taken together form one single document.

9.10. Entire Agreement. This agreement, and each of the Proposals which are hereby incorporated by references into this agreement, are the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all oral agreements between the Parties with respect to the subject matter hereof.