AGREEMENT between [Superscript Creative LLC 1311 Kapiolani Blvd #509 Honolulu, Hi 96814] (“Agency”), and (“Client”).
Client appoints Agency as Client’s marketing agency in connection with the products and/or services of Client described in Schedule 1, attached hereto, for a term of 24 months (“Term”) as hereinafter provided.
2. Scope of Advertising Services
Agency will provide Client with the marketing services provided in Schedule 1, attached hereto. Should Client request Agency to perform additional services beyond what is provided in Schedule 1, Agency and Client will negotiate in good faith with respect to the terms, conditions, and compensation for such additional services. lxxi Any agreement for additional services will be set forth in writing and considered an addendum to this Agreement.
All campaigns, trademarks, service marks, slogans, artwork, written materials, drawings, photographs, graphic materials, film, music, transcriptions, or other materials that are subject to copyright, trademark, patent, or similar protection (collectively, the “Work Product”) produced by Agency are the property of the Client provided: (1) such Work Product is accepted in writing by the Client within twelve (12) months of being proposed by Agency; and (2) Client pays all fees and costs associated with creating and, where applicable, producing such Work Product. Work Product that does not meet the two foregoing conditions shall remain Agency’s property.
Notwithstanding the foregoing, it is understood that Agency may, on occasion, license materials from third parties for inclusion in Work Product. In such circumstances, ownership of such licensed materials remains with the licensor at the conclusion of the term of the license. In such instances, Client agrees that it remains bound by the terms of such licenses. Agency will keep Client informed of any such limitations.
The term of this Agreement shall commence on the date of Job completion (“Commencement Date”) and shall continue terminated by either party upon thirty (30) days’ prior written notice (“Notice Period”), provided that this Agreement may not be terminated effective prior to the expiration of twenty-four (24) months from the Commencement Date. lxxiii Notice shall be deemed given on the day of mailing or, in case of notice by telegram, on the day it is deposited with the telegraph company for transmission. During the Notice Period, Agency’s rights, duties, and responsibilities shall continue.
Upon termination, Agency will transfer and/or assign to Client: (1) all Work Product in Agency’s possession or control belonging to Client, subject, however, to any rights of third parties; and (2) all contracts with third parties, including advertising media or others, upon being duly released by Client and any such third party from any further obligations. Client recognizes that Agency is a signatory to certain union agreements covering talent used in broadcast materials, which generally cannot be assigned except to signatories to such collective bargaining agreements governing the services rendered by such talent.lxxiv
5. Compensation and Billing Procedure
Agency will be compensated and Client will be billed on the 1st of each month with payment due in 30 days.
6. Confidentiality and Safeguard of Property
Client and Agency respectively agree to keep in confidence, and not to disclose or use for its own respective benefit or for the benefit of any third party (except as may be required for the performance of services under this Agreement or as may be required by law), any information, documents, or materials that are reasonably considered confidential regarding each other’s products, business, customers, clients, suppliers, or methods of operation; provided, however, that such obligation of confidentiality will not extend to anything in the public domain or that was in the possession of either party prior to disclosure. Agency and Client will take reasonable precautions to safeguard property of the other entrusted to it, but in the absence of negligence or willful disregard, neither Agency nor Client will be responsible for any loss or damage.
Agency agrees to indemnify and hold Client harmless with respect to any claims or actions by third parties against Client based upon material prepared by Agency, involving any claim for libel, slander, piracy, plagiarism, invasion of privacy, or infringement of copyright, except where any such claim or action arises out of material supplied by Client to Agency.lxxv
Client agrees to indemnify and hold Agency harmless with respect to any claims or actions by third parties against Agency based upon materials furnished by Client or where material created by Agency is substantially changed by Client. Information or data obtained by Agency from Client to substantiate claims made in advertising shall be deemed to be “materials furnished by Client.” Client further agrees to indemnify and hold Agency harmless with respect to any death or personal injury claims or actions arising from the use of Client’s products or services.
8. Commitments to Third Parties
For all media purchased by Agency on Client’s behalf, Client agrees that Agency shall be held solely liable for payments only to the extent proceeds have cleared from Client to Agency for such media purchase; otherwise, Client agrees to be solely liable to media (“Sequential Liability”). Agency will use its best efforts to obtain agreement by media to Sequential Liability.lxxvi
Any amendments to this Agreement must be in writing and signed by Agency and Client.
Any notice shall be deemed given on the day of mailing or, if notice is by telegram, e-mail, or fax, on the next day following the day notice is deposited with the telegraph company for transmission, or e-mailed or faxed.
11. Governing Law
This Agreement shall be interpreted in accordance with the laws of the State of Hawaii without regard to its principles of conflicts of laws. Jurisdiction and venue shall be solely within the State of Hawaii.