The purpose of this agreement is to clearly define the expectations of each other so that an optimum level of communication, performance and goodwill is always maintained between us. The establishment of these ground rules provides a mutually profitable relationship, allowing us to perform with excellence in our collaboration with you.
Linkup Marketing including all employees and subcontractors, agrees to act as counsel for the Client in the planning, preparation and placement of all Marketing Communications materials authorized by the Client, including the purchase or engaging of subcontractors, facilities, media and talent as may be required. No expenditures will be made by Linkup Marketing for Client’s account except upon our joint approval or as otherwise provided herein.
2. Compensation & Payment Terms
Current an ongoing projects will be charged on a time and materials basis, unless otherwise agreed in the project requirements. Larger projects may require a deposit up to 50% as per the negotiated terms upon signing. Otherwise terms are net 30 on all invoices. Overdue invoices are subject to a 1.5% per month finance charge and jeopardize adherence to production schedules.
2.1 Cancellation & Refund Policy
Cancellation of any ongoing projects or recurring services require a 30 day written notice for cancellation. No refunds will be given for services rendered without cancellation notice or for services already provided as part of any agreement.
For all Projects, requiring an estimate, undertaken at the request of the Client, Linkup Marketing will submit a budget estimate detailing the cost ceilings for each of the three (3) following Benchmarks of the Project:
- Strategic consultation and formulation, including organization, research, creative rationale and so on.
- Concept development and documentation, including copywriting, design, layout, staff training and so on.
- Third party inclusions and mechanicals, including photography, typesetting, illustrations, stats and paste-up as well as production costs such as bindery, printing, packing, shipping and so on.
Once budgets are agreed upon, and project requirements approved, Linkup Marketing is committed to produce the projects within the specified parameters (within an additional 10% is acceptable). Should project specifications change Linkup Marketing will submit a Revision Order before proceeding. Linkup Marketing will invoice the Client for the installment amounts specified on the Project Requirements form as project benchmarks are completed.
The Client shall acknowledge (initial) completion of individual Benchmarks and by that acknowledgment, approve the accuracy, quality and suitability for payment of work performed through completion of that Benchmark.
The rates for Time & Materials for all Projects, charged on a Time & Materials basis, are defined in a Proposal Letter or on the Project Requirements form. Activities include those described above as Benchmarks and, in addition, include time for Conference, Telephone, Writing, Editing, Project Management and/or any other activity directly relating to Client’s business and/or in Client’s behalf. Time is charged in minimum increments of fifteen (15) minutes. Time is recorded in an Activity Record and is invoiced monthly.
4. Expense Reimbursement
The Client agrees to reimburse Linkup Marketing for travel expenses (other than normal travel between our offices) when such travel is specifically requested by Client. The Client also agrees to reimburse Linkup Marketing for such miscellaneous expenses as messenger, shipping, and so on.
5. Media Commission
For all advertising space engaged or employed by Linkup Marketing on Client’s behalf, it is understood that Linkup Marketing shall collect a 10% percent agency commission on such advertising placement. The company agrees to seek out the best rates it can acquire from the Publishers’ for the client.
The Client agrees to pay Publishers’ current card rates for such space (or air time) by simultaneously reimbursing Linkup Marketing for payment of Publishers’ invoice within Publishers’ Net Terms. Media planning and scheduling are considered a Project and charged accordingly.
6. Hold Harmless
The Client assumes full responsibility for the accuracy and legality of all information. The Client supplies to Linkup Marketing regarding the Client’s product(s) and / or services as well as for use in the Client’s advertising, publicity or any Marketing Communications materials. Furthermore, the approval of the Client for advertising and / or publicity prepared by Linkup Marketing on the Client’s behalf acknowledges the Client’s responsibility as advertiser to indemnify Linkup Marketing against any losses Linkup Marketing may incur as a result of action brought against Linkup Marketing based upon such advertising and / or publicity.
7. Term of Agreement
The term of this agreement commences upon the date of approval of initiating any project and shall remain effective indefinitely. Any notice of termination by either party must be given in writing by registered mail or certified mail to the other party not less than thirty (30) days prior to the effective date of termination. The rights, duties and responsibilities of Linkup Marketing shall continue in full force during the period of notice including ordering of advertising media, whose closing dates fall within such period.
After expiration of the agreed upon interval following notice, no right of liabilities shall arise out of this relationship, regardless of any plans that may have been made for future advertising, except that any uncancellable plans that may have been made on the Client’s authorization, and still existing at the expiration of the agreed-on interval following notice, shall be carried to completion by Linkup Marketing and paid for by the Client unless mutually agreed in writing to the contrary, in accordance with the provisions in this agreement.
Upon the termination of this agreement, Linkup Marketing shall transfer, assign, and make available to the Client, or their representative, all property and materials in Linkup Marketing’s possession or control belonging to and paid for by the Client, along with any intellectual property designed, developed or created on behalf of the client and for the use of the client and all information regarding the Client’s Marketing Communications.
Linkup Marketing also agrees to give all reasonable cooperation toward transferring, with approval of third parties in interest, all reservations, contracts, and arrangements with advertising media, or others, for advertising space, or materials yet to be used (including uncancellable contracts and all rights and claims in and to those contracts), upon being released from the obligations of those reservations, contracts and arrangements. However, at termination, unused or unpublished advertising plans and ideas prepared by Linkup Marketing shall remain Linkup Marketing’s property, regardless of whether or not the physical embodiment of the creative work is in the possession of the Client or in the form of copy, artwork, plates, etc.
11. General Provisions
11.1. Independent Contractors
The relationship between both parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to give either party the power to direct and control the day-to-day activities of the other. Neither party is an agent, representative or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such relationship upon either party.
11.2. Governing Law & Jurisdiction
This agreement and the parties’ actions under this Agreement shall be governed by and construed under the laws of the state of California, without reference to conflict of law principles. The parties hereby expressly consent to the jurisdiction and venue of the federal and state courts within the state of California. Each party hereby irrevocably consents to the service of process in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such party at its address set forth in the preamble of this Agreement, such service to become effective thirty (30) days after such mailing.
11.3. Entire Agreement
This Agreement, including the attached exhibits, constitutes the entire Agreement between both parties concerning this transaction, and replaces all previous communications, representations, understandings, and Agreements, whether verbal or written between the parties to this Agreement or their representatives. No representations or statements of any kind made by either party, which are not expressly stated in this Agreement, shall be binding on such parties.
11.4. All Amendments in Writing
No waiver, amendment or modification of any provisions of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom such waiver, amendment or modification is sought to be enforced. Furthermore, no provisions in either party’s purchase orders, or in any other business forms employed by either party will supersede the terms and conditions of this Agreement.
Any notice required or permitted by this Agreement shall be deemed given if sent by registered mail, postage prepaid with return receipt requested, addressed to the other party at the address set forth in the preamble of this Agreement or at such other address for which such party gives notice hereunder. Delivery shall be deemed effective three (3) days after deposit with postal authorities.
11.6. Costs of Legal Action
In the event any action is brought to enforce this Agreement, the prevailing party shall be entitled to recover its costs of enforcement including, without limitation, attorneys’ fees and court costs.
11.7. Inadequate Legal Remedies
Both parties understand and acknowledge that violation of their respective covenants and Agreements may cause the other irreparable harm and damage, that may not be recovered at law, and each agrees that the other’s remedies for breach may be in equity by way of injunctive relief, as well as for damages and any other relief available to the non-breaching party, whether in law or in equity.
Any dispute relating to the interpretation or performance of this Agreement shall be resolved at the request of either party through binding arbitration. Arbitration shall be conducted in Los Angeles County, California in accordance with the then-existing rules of the American Arbitration Association. Judgment upon any award by the arbitrators may be entered by any state or federal court having jurisdiction. Linkup Marketing and [Client] intend that this Agreement to arbitrate be irrevocable.
11.9. Delay is Not Waiver
No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided in this Agreement, shall operate as a waiver of any such right, power or remedy.
11.10. Force Majeure
In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of any Act of God, strike, fire, flood, governmental acts, orders or restrictions, Internet system unavailability, system malfunctions or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non- performing party (a “Force Majeure Event”), the party who has been so affected shall give notice immediately to the other party and shall use its reasonable best efforts to resume performance. Failure to meet due dates resulting from a Force Majeure Event shall extend such due dates for a reasonable period. However, if the period of nonperformance exceeds sixty (60) days from the receipt of notice of the Force Majeure Event, the party whose ability to perform has not been affected may, by giving written notice, terminate this Agreement effective immediately upon such notice or at such later date as is therein specified.
11.11. Non-Assignability & Binding Effect
Except as otherwise provided for within this Agreement, neither party may assign any of its rights or delegate any of its obligations under this Agreement to any third party without the express written permission of the other. Any such assignment is deemed null and void.
11.12. Certain Sections Invalid
If any provisions of this Agreement are held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, they are to that extent to be deemed omitted and the remaining provisions of this Agreement shall remain in full force and effect.
The titles and headings of the various sections and sections in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement.
11.14. Survival of Certain Provisions
The warranties and the indemnification and confidentiality obligations set forth in the Agreement shall survive the termination of the Agreement by either party for any reason.