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PROMOTION AND MARKETING SERVICES
TERMS AND CONDITIONSThese Promotion and Marketing Services Termsand Conditions (these "Terms") are attached to andincorporated by reference into the Order Form executed by Group C, LLC, an Iowalimited liability company, located at 1821 High Street, Des Moines, IA 50309 ("ServiceProvider" or "Group C"), and the client identified onthe Order Form ("Client"). By executing the Order Form, Client agrees to be bound by these Terms. The "Effective Date" shallbe the date the Order Form is executed by both parties.
In consideration of the mutualcovenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. ServiceProvider Services.1.1 Services. ServiceProvider shall provide to Client the promotion, marketing, and consulting services (the "Services") as set forth in the Order Form. Inthe event of any inconsistency between the Order Form and these Terms, the terms of these Terms shall control unless the Order Form expressly states otherwise.
(a) Service Provider shall usecommercially reasonable efforts to provide the Services: (i) in accordance with the terms and subject to the conditions set forth in the Order Form and these Terms; (ii) using personnel of required skill, experience, and qualifications; (iii) in a workmanlike and professional manner; and (iv) in accordance with generally recognized industry standards in the promotion and marketing field.
(b) Client acknowledges that anyestimated impressions, reach, or other delivery metrics set forth in the Order Form are estimates only and are not guaranteed by Service Provider. Actual delivery may vary based on market conditions, platform availability, campaign parameters, and other factors outside Service Provider's control.
1.2 Service Provider Personnel.
(a) Service Provider shall havesole discretion to determine which of its owners, employees or approved subcontractors will perform the Services, provided that such individuals are suitably skilled and qualified. Client's prior written approval shall not be required for the use of Service Provider's owners, employees or previously approved subcontractors (collectively, the "Service Provider Personnel").
(b) Service Provider shall supervise and direct allindividuals and subcontractors necessary to perform the Services, each of whom
shall be suitably skilled and qualified.(c) Service Provider shall complywith all applicable laws in connection with the performance of the Services.
(d) Service Provider shall beresponsible for compensating the Service Provider Personnel engaged to perform the Services.
(e) Service Provider may engagesubcontractors with Client’s approval to assist in providing the Services, provided that Service Provider remains responsible for the performance of such subcontractors. Client's approval shall not be unreasonably withheld or delayed. Nothing in these Terms shall create any contractual relationship between Client and any subcontractor. Service Provider shall require each subcontractor to be bound in writing by the confidentiality and intellectual property provisions of these Terms.
1.3 Client Approval. Prior to theirpublic release, Service Provider shall submit to Client for approval any Deliverables intended to be displayed, published, reproduced, distributed, or otherwise made publicly available. Within thirty (30) days after receiving a submission and request for approval from Service Provider, Client shall provide Service Provider with written approval or disapproval of the materials submitted. If Client does not respond within forty-five (45) days, the submission will be deemed approved. Client approval will not modify in any way Service Provider's representations, warranties, covenants, and other obligations under these Terms.
1.4 No Exclusivity. Service Providerretains the right to perform the same or similar type of services for third parties during the Term (as defined in Section 9.1).
1.5 Status Reports. Service Providershall provide periodic written status reports as reasonably requested by Client, including confirmation of completion of Services and milestones as set forth in the Order Form.
1.6 Ad Account Ownership and Reporting.
(a) Service Provider shall establishand maintain digital advertising accounts on third-party advertising platforms to deliver the Services on behalf of Client (collectively, "Ad Accounts").Client acknowledges and agrees that all Ad Accounts are owned and controlled exclusively by Service Provider, and Client shall have no ownership interest in, or direct access to, the Ad Accounts. Service Provider may, in its sole discretion, utilize the Ad Accounts to provide services to other clients.
(b) Service Provider shall provideClient with access to standard reporting data via Service Provider's reporting
dashboard during the Term. The term "standard reporting data" means
campaign performance metrics consistent with the guidelines published by the
Interactive Advertising Bureau (IAB), including impressions, clicks,
click-through rates, conversions, and similar metrics as made available through
Service Provider's reporting dashboard.(c) All performance metrics andcampaign data reported under these Terms shall be determined solely by Service
Provider's reporting systems and data. In the event of any discrepancy between
Service Provider's data and any third-party or Client data, Service Provider's
data shall control for all purposes under these Terms.1.7 Compliance with Laws.Service Provider shall comply with all applicable federal, state, and local
laws, ordinances, regulations, and orders that are applicable to these Terms
and its performance of the Services hereunder.1.8 Campaign Cancellation.Client may pause or cancel any campaign by providing Service Provider with at
least forty-eight (48) hours' prior written notice. Any cancellation notice
received less than forty-eight (48) hours prior to a scheduled campaign launch
or continuation shall not be effective until forty-eight (48) hours after
receipt by Service Provider, and Client shall remain responsible for all fees
and media costs incurred during such period. Notwithstanding the foregoing,
Client shall remain responsible for all fees and expenses incurred prior to the
effective date of cancellation.2. ClientObligations and Responsibilities. Client shall:
2.1 Appoint and, in its reasonablediscretion, replace a Client employee to serve as the primary contact with
respect to these Terms and who will have the authority to act on behalf of
Client with respect to matters pertaining to these Terms (the "ClientContract Manager").2.2 Provide copies of or access toClient's information, documents, samples, marketing services, or other
materials (collectively, "Client Materials") as ServiceProvider may reasonably request in order to carry out the Services in a timely
manner and which Client has agreed in writing in advance to provide, and ensure
that they are complete and accurate in all material respects. Client and its
licensors are, and shall remain, the sole and exclusive owner of all right,
title, and interest in and to all Client Materials, including all copyrights,
trademarks, service marks, trade dress, trade names, trade secrets, patents,
mask works, and other intellectual and industrial property rights (collectively
"Intellectual Property Rights") therein. Service Providershall have the right to use any Client Materials during the Term to the extent
necessary to provide the Services to Client, and all other rights in and to the
Client Materials are expressly reserved by Client.2.3 Use commercially reasonable effortsto respond promptly to any Service Provider request to provide direction,
information, approvals, authorizations, or decisions that are reasonably
necessary for Service Provider to perform the Services in accordance with the
requirements of these Terms.3. IntellectualProperty Rights; Ownership.
3.1 Ownership of Deliverables.
(a) Except as set forth in thisSection 3, and subject to payment of the Fees, Client will own only the final
Deliverables that are specifically created for and delivered to Client under these
Terms, including all Intellectual Property Rights therein. All other materials,
drafts, concepts, ideas, and work product, whether finished or unfinished, and all
underlying tools, know-how, and methodologies used or developed by Service
Provider, shall remain the property of Service Provider. Deliverables do not
include any pre-existing materials, general skills, or knowledge of Service
Provider.(b) All final Deliverablesprotectable under United States copyright law shall be owned by Client as
"works made for hire" only to the extent required by law and solely
for those Deliverables specifically created for and delivered to Client under
these Terms. To the extent any such Deliverables are not deemed works made for
hire, Service Provider assigns to Client only those rights in the final
Deliverables necessary for Client's use of the Deliverables as intended under
these Terms. All other rights, including any underlying Intellectual Property
Rights, tools, know-how, and methodologies, shall remain with Service Provider.(c) Upon reasonable request ofClient, Service Provider shall take commercially reasonable actions, including
executing necessary documents, to assist Client in securing rights in the final
Deliverables specifically created for and delivered to Client under these Terms.
Service Provider shall not be required to take actions that would transfer
ownership of any underlying tools, know-how, methodologies, or pre-existing
materials.(d) Notwithstanding anything herein to thecontrary, Client's ownership of the Deliverables is subject to: (i) the rights
of third parties whose materials or services are included in the Deliverables
with Client's prior knowledge (such as stock footage, photos, music, and
software) and used under a license or other permission granted to Service
Provider or Client ("Third-Party Materials"); and (ii) allmaterials owned by Service Provider prior to, or independent from, these Terms,
as well as methodologies, software, applications, processes, or procedures used
or developed by Service Provider in its general business, except those created
specifically for Client or at Client's request or funded by Client
(collectively, "Pre-Existing Materials"). Service Providergrants Client a royalty-free, perpetual, worldwide license to use any Pre-Existing
Materials incorporated in the Deliverables, solely as necessary for Client's
use of the Deliverables.3.2 License to Certain ClientIntellectual Property.
(a) Subject to the terms of theseTerms, Client grants Service Provider a limited, non-transferable,
non-sublicensable (except to approved subcontractors), non-exclusive license
during the Term to use, in connection with performing the Services: (i)
Client's Intellectual Property Rights as reasonably required to create and
deliver the Deliverables; and (ii) Client's website addresses, websites, and
URLs as reasonably necessary for the Services.(b) Except as expressly set forthherein, Client grants no other right or license to its Intellectual Property
Rights to Service Provider. Service Provider acknowledges Client's ownership of
its Intellectual Property Rights, but nothing herein shall restrict Service
Provider or the Service Provider Personnel, from using any general knowledge,
skills, experience, or know-how acquired during the performance of the
Services, provided that such use does not disclose Client's confidential
information. Any use of Client's Intellectual Property Rights and all goodwill
associated therewith shall inure to the benefit of Client.4. Feesand Expenses; Payment Obligations.
4.1 Fees and Expenses.
(a) Client shall pay ServiceProvider the fees and expenses as set forth in the applicable Order Form.
Unless otherwise agreed in writing, all fees are non-refundable and payable in
accordance with the Order Form.(b) Client shall reimburseService Provider for all reasonable out-of-pocket expenses incurred in
connection with the Services, as specified in the Order Form or otherwise
approved by Client in writing.(c) Payment of fees and expensesas set forth above constitutes payment in full for the Services rendered under
the applicable Order Form.4.2 Payment. Unless otherwiseprovided in the Order Form, Service Provider will invoice Client monthly in
arrears, and Client shall pay all undisputed amounts within thirty (30) days of
receipt of invoice.4.3 Taxes. All fees are exclusive oftaxes. Client is responsible for all applicable sales, use, and similar taxes,
except for taxes on Service Provider's income.4.4 Invoice Disputes. Client mustnotify Service Provider in writing of any invoice dispute within seven (7) days
of receipt. All undisputed amounts are due as set forth above.4.5 Late Payments. Late payments willaccrue interest at one and a half percent (1.5%) per month or the maximum rate
allowed by law. Client shall reimburse Service Provider for all reasonable
costs of collection, including attorneys' fees.5. Representations,Warranties, and Certain Covenants.
5.1 Service ProviderRepresentations, Warranties, and Covenants. Service Provider represents,warrants, and covenants to Client that, to the extent required by applicable
law and in all material respects: (a) it has or shall obtain and shall maintain
in full force and effect during the Term, at its own expense, all
certifications, credentials, authorizations, licenses, and permits necessary to
the exercise of its rights and the performance of its obligations under these
Terms, to the extent required by applicable law; and (b) it shall comply in all
material respects with, and ensure that all Service Provider Personnel comply
with, all commercially reasonable and necessary specifications, rules,
regulations, and policies of Client that are communicated to Service Provider
in writing with reasonable advance written notice; and (c) to the knowledge of
Service Provider, Client will receive good and valid title to all Deliverables,
free and clear of all encumbrances and liens of any kind; and (d) to the
knowledge of Service Provider, none of the Services, final versions of the
Deliverables, or Client's use thereof infringe or violate or will infringe or
violate the publicity and privacy rights or any other Intellectual Property
Rights of any third party in the United States.5.2 Client Representations,Warranties, and Covenants. Client represents, warrants, and covenants toService Provider that the Client's Intellectual Property and Client Materials
provided to Service Provider for use as permitted in these Terms do not
infringe or violate and will not infringe or violate the publicity and privacy
rights or any other Intellectual Property Rights of any third party.5.3 NO OTHER REPRESENTATIONS ORWARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS ANDWARRANTIES CONTAINED IN THESE TERMS, (A) NEITHER PARTY TO THESE TERMS, NOR ANY
OTHER PERSON ON SUCH PARTY'S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED
REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW OR
OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY
ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY
THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, EXCEPT AS
SPECIFICALLY PROVIDED IN SECTION 5 OF THESE TERMS.6. Indemnification.
6.1 Mutual Indemnification. Eachparty (the "Indemnifying Party") shall defend, indemnify, andhold harmless the other party, and its officers, directors, employees, agents,
affiliates, successors, and permitted assigns (collectively, the "Indemnified
Party"), from and against any and all losses, damages, liabilities,
claims, actions, judgments, settlements, interest, awards, penalties, fines,
costs, or expenses of whatever kind, including reasonable attorney fees and
costs of enforcement, arising out of or resulting from any third-party claim
alleging (a) breach by the Indemnifying Party of any representation, warranty,
covenant, or obligation under these Terms; (b) gross negligence or more
culpable act or omission of the Indemnifying Party in connection with the
performance of its obligations; or (c) that the Indemnifying Party's materials,
services, deliverables, or intellectual property provided under these Terms
infringe or violate the publicity, privacy, or intellectual property rights of
any third party.6.2 Indemnification Procedures.A party seeking indemnification under this Section 6 (the "IndemnifiedParty") shall give the party from whom indemnification is sought (the"Indemnifying Party"): (a) prompt Notice (as defined in Section10.3) of the relevant claim; provided, however, that failure to provide such
Notice shall not relieve the Indemnifying Party from its liability or
obligation hereunder except to the extent of any material prejudice directly
resulting from such failure; and (b) reasonable cooperation, at the
Indemnifying Party's expense, in the defense of such claim. The Indemnifying
Party shall have the right to control the defense and settlement of any such
claim; provided, however, that the Indemnifying Party shall not, without the
prior written approval of the Indemnified Party, settle or dispose of any
claims in a manner that affects the Indemnified Party's rights or interest. The
Indemnified Party shall have the right to participate in the defense at its own
expense.6.3 EXCLUSIVE REMEDY. THISSECTION 6 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING
PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY
DAMAGES COVERED BY THIS SECTION 6.7. LIMITATIONOF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE,WILLFUL MISCONDUCT, OR OBLIGATIONS TO INDEMNIFY UNDER THESE TERMS, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT,
EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE,
PROFIT, BUSINESS INTERRUPTION, OR INFORMATION, REGARDLESS OF THE CAUSE AND EVEN
IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR ALL OTHER CLAIMS, EACH
PARTY'S AGGREGATE LIABILITY TO THE OTHER SHALL NOT EXCEED THE TOTAL FEES
ACTUALLY PAID BY CLIENT TO SERVICE PROVIDER IN THE TWELVE (12) MONTHS PRECEDING
THE EVENT GIVING RISE TO THE CLAIM.8. Confidentiality.During the Term, either party (the "Disclosing Party") may providethe other party (the "Receiving Party") with confidential orproprietary information, including business affairs, services, Intellectual
Property, trade secrets, third-party confidential information, and the terms of
these Terms, whether disclosed orally, in writing, electronically, or
otherwise, and whether or not marked as confidential ("ConfidentialInformation"). Confidential Information does not include informationthat: (a) is or becomes public other than through a breach of this Section; (b)
is received lawfully from a third party not under an obligation of
confidentiality; (c) was already known to the Receiving Party before
disclosure; (d) is independently developed without use of the Disclosing
Party's Confidential Information; or (e) must be disclosed by law. For the Term
of these Terms, the Receiving Party will: (x) protect the Confidential
Information with at least the same care it uses for its own, but not less than
reasonable care; (y) use Confidential Information only to exercise rights or
perform obligations under these Terms; and (z) not disclose it except to those
who need to know for these purposes and are bound by confidentiality
obligations. The Receiving Party is responsible for any breach by its representatives.
At any time during or after the Term, upon the Disclosing Party's written
request, the Receiving Party will promptly return or destroy all Confidential
Information and copies, as required by Section 9.3.9. Termand Termination.
9.1 Term. The term of theseTerms begins on the Effective Date and will remain in effect for the duration
specified in the Order Form or, if no duration is specified, until the Services
described in the Order Form have been completed. If the parties execute
additional Order Forms, these Terms shall apply to each such Order Form. These
Terms may be terminated earlier in accordance with Section 9.2 (the "Term").9.2 Termination for Cause.
(a) Client may terminate theseTerms for cause by providing at least thirty (30) days' written notice to
Service Provider, specifying the material breach. Service Provider will have thirty
(30) days to cure the breach. If the breach is not materially cured within this
thirty (30) day period, these Terms may be terminated by Client.(b) Service Provider mayterminate these Terms for cause by providing written notice to Client if: (i)
Client fails to make a timely payment and does not cure such failure within ten
(10) days after receiving written notice of nonpayment for undisputed amounts;
or (ii) Client fails to make three or more timely payments in any twelve (12) month
period.9.3 Effect of Expiration or Termination.
(a) Upon the expiration or terminationof these Terms for any reason (including pursuant to Section 10.10), each party
shall promptly: (i) return or destroy all documents and tangible materials (and
any copies) containing, reflecting, incorporating, or based on the other
party's Confidential Information; and (ii) permanently erase all of the other
party's Confidential Information from its computer systems, except for copies
that are maintained as archive copies on its disaster recovery or information
technology backup systems, which it shall destroy upon the normal expiration of
its backup files; and (iii) certify in writing to the other party that it has
complied with the requirements of this clause; provided, however, that Client
may retain copies of any Confidential Information of Service Provider
incorporated in the Deliverables, or to the extent necessary to allow it to
make full use of the Services and any Deliverables, so long as no payment
dispute exists.(b) Upon expiration or termination ofthese Terms for any reason (including pursuant to Section 10.10), Service
Provider shall: (i) promptlydeliver to Client all Deliverables (whether complete or incomplete) for which
Client has paid in full and all Client Materials; and (ii) on a pro-rata basis,
repay any fees and expenses paid in advance for any Services or Deliverables
that have not been provided.10. Miscellaneous.
10.1 Entire Agreement. These Terms,together with the Order Form and any exhibits or schedules attached thereto, constitute
the sole and entire agreement between the parties and replace all prior
agreements or understandings related to its subject matter.10.2 Survival. Sections 5,6, 7, 8, 9, and 10, and any other provisions intended to survive, remain in
effect for twelve (12) months after termination, or as specified. With respect
to Confidential Information that constitutes a trade secret under applicable
law, the protections of these Terms shall survive as long as the information
remains a trade secret.10.3 Notices. All notices,requests, consents, claims, demands, waivers, and other similar communications
hereunder (each, a "Notice") shall be in writing and addressedto the parties at the addresses set forth in the Order Form. All Notices shall
be delivered by personal delivery, nationally recognized overnight courier
(with all fees pre-paid), facsimile or email (with confirmation of
transmission), or certified or registered mail (in each case, return receipt
requested, postage prepaid). Except as otherwise provided herein, a Notice is
effective upon receipt and must comply with this section.10.4 Severability. If any partof these Terms is invalid or unenforceable, such invalidity or unenforceability
shall not affect any other term or provision of these Terms. Upon a
determination that any term or provision is invalid, illegal, or unenforceable,
the parties shall negotiate in good faith to modify these Terms to effect the
original intent of the parties.10.5 Amendment; Waiver. Anychanges to these Terms must be in writing and signed by both parties. Waivers
must be in writing and signed by that waiving party. Failure to enforce any
right herein does not waive other rights, nor shall any single or partial
exercise of rights preclude any other or further exercise of any rights hereunder.10.6 Equitable Relief;Cumulative Remedies. Each partyacknowledges that a breach of Section 8 (Confidentiality) may cause the other
party irreparable damages, for which an award of damages would not be adequate
compensation. In the event of such breach or threatened breach, the other party
will be entitled to seek equitable relief. Except as expressly set forth in these
Terms, the right and remedies under these Terms are cumulative and in addition
to any other rights or remedies available at law or in equity or otherwise.10.7 Assignment. Neitherparty may assign or transfer these Terms without the other party's written
consent, which will not be unreasonably withheld. Any unauthorized assignment
is void. These Terms bind and benefit the parties and their permitted
successors and assigns.10.8 No Third-Party Beneficiaries.These Terms are for the sole benefit of the parties and their permitted
successors and assigns. No other person has any rights under these Terms.10.9 Governing Law: Submissionto Jurisdiction. These Terms are governed by Iowa law. Any disputes will beresolved exclusively in the state or federal courts in Des Moines or Polk
County, Iowa. Each party submits to these courts and waives any objection to venue
or jury trial.10.10 Force Majeure. No party shall beliable or responsible to the other party, nor be deemed to have defaulted under
or breached these Terms, for any failure or delay in fulfilling or performing
any term of these Terms, when and to the extent such failure or delay is caused
by or results from events outside of the party's reasonable control ("ForceMajeure Events"), including but not limited to: (a) acts of God; (b)flood, fire, earthquake, epidemics, pandemics, or explosion; (c) war, invasion,
hostilities (whether war is declared or not), terrorist threats or acts, riot,
or other civil unrest; (d) government order or law; (e) actions, embargoes, or
blockades in effect on or after the date of these Terms; (f) action by any
governmental authority; (g) national or regional emergency; and (h) strikes,
labor stoppages or slowdowns or other industrial disturbances. The affected
party shall resume performance under these Terms as soon as reasonably
practicable after the Force Majeure Event has been resolved or terminated.10.11 Relationship of Parties. Theparties are independent contractors. Nothing creates a partnership, joint
venture, employment, or fiduciary relationship.10.12 Counterparts. TheOrder Form may be signed in counterparts, each of which is an original. Signed
copies delivered by email are valid as originals.[END OF TERMS AND CONDITIONS]
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